Special Master Submits Report in US v. Mississippi Lawsuit

Special Master Submits Report in US v. Mississippi Lawsuit

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After finding in September 2019 that “Mississippi’s system of care for adults (with serious mental illness) violates the integration mandate of the ADA”, in early 2020 Judge Carlton Reeves appointed Dr. Michael Hogan as Special Master to assist the court in developing an appropriate remedial plan. Dr. Hogan worked with the parties (US Department of Justice and the State of Mississippi) for more than a year, but the parties were not able to come to an agreement on a remedial plan. Both sides were then ordered to submit proposed remedial plans (see Mississippi’s proposed remedial plan and United States’ proposed remedial plan) and Dr. Hogan was asked to review both plans and advise the court on next steps. Dr. Hogan submitted his Special Master report to the court on June 3.

These are excerpts from Dr. Hogan’s report (all italicized script is quoted verbatim):

  • Both the State’s Report and DOJ’s Plan substantively address the matters at issue in this case.
  •  There are also several areas where the parties remain in disagreement. In some areas, these disagreements relate to the extent of needed additional services (e.g., needed levels of Supported Housing). In other areas, the parties disagree not so much on the extent of needed services, but on the exact type of services to meet the need. 
  •  There are some areas where the parties are far apart. In general, the State’s materials indicate that it believes any deficiencies in its care of adults with serious mental illness vis a vis the requirements of the Americans with Disabilities Act have been virtually resolved—and if not yet sufficient will be fully adequate by the end of FY22. The State asserts that the data provided in its Report and in Director Bailey’s Declaration provide sufficient evidence of compliance. In general, the DOJ takes the position that independent validation of services adequacy will be needed, that the Court should approve any alternative services not discussed at trial, and that a Court Monitor should be appointed to validate implementation of new services and procedures. 
  •  The recommendations made by both parties are substantive. In general, it is possible to find the right approach in either the State’s or the DOJ’s proposals, or in an approach that considers the merits of each and finds a middle ground.
  •  The Special Master finds that there are some strengths in Mississippi’s mental health system, and it also appears that progress in better serving adults with serious mental illness and meeting the mandates of the ADA has been made in recent years and since the trial. Much of the evidence of improvement is outside the record (e.g., in annual reports of DMH) and has not been validated. 
  • …the State has developed and proposes to further develop some Intensive Community Services that were not present several years ago and are therefore not explicitly supported by the record. In the Special Master’s view, this should
    not be disqualifying—if the proposed services are well designed, adequately
    implemented, and appropriately monitored they can be included in a Plan even if they are not explicitly discussed in the trial record.
    In fact, except for Supported Housing, where the trial record demonstrates that the State’s proposal is insufficient, the Special Master’s recommendations are largely what the State has proposed (emphasis added). 
  •  The performance of the State’s community mental health services is central to resolving this case. The trial record amply demonstrates long standing gaps between services that were funded vs. those that were available to people with mental illness, and delivered to help prevent unnecessary institutionalization.
  •  The record does not demonstrate that, at the time of trial, the State had the capacity to adequately oversee the CMHC’s overall performance. 
  •  The Special Master’s experience confirms that developing the capabilities for effective and efficient oversight of complex mental health systems is not achieved overnight or accomplished via one or two actions. Individual steps (such as creation of the new role of Coordinator of Mental Health Accessibility) are welcome but insufficient, on their own, to assure accountability. 
  •  Therefore, the Special Master’s proposal will suggest that monitoring of whether services are in place, available and used by people with serious mental illness, and functioning according to their intent is essential. 
  •  The Special Master is also sympathetic to the need of State officials to chart and implement directions that will resolve the ADA issues in the case in a fashion that works for Mississippi. Two examples exist in the differing approaches to Intensive Community Support Services and to Supported Employment proposed in the State and DOJ plans. 
Dr Hogan then details his recommendations for how the State’s plan should be implemented, including the Intensive Community Services that have been a source of concern. Dr. Hogan’s inclusion of them and his recommendations for implementing them in his plan is reassuring that those services can be effectively used to help people with serious mental illnesses live meaningful lives in the community if they are well-implemented.

Dr. Hogan’s plan requires data collection and independent monitoring and it provides opportunities for public input. Throughout the ten years this legal battle has taken place, the State has repeatedly indicated that it would not agree to independent monitoring. Given that the Special Master’s report simply requires monitoring of what the State said it would do (and in some cases reports it is already doing), we hope that the State will reconsider its opposition to independent monitoring.

The report does not directly address the State’s assertions that it is not currently in violation of the ADA and was not at the time of the trial, but this point seems to speak to that assertion – “However, data on community service performance is not yet adequate to assess performance or to allow the Court to determine if the requirements of the ADA are being met. Levels of services that are in place have not been verified. The actual availability of services to Mississippians is not yet certain.”

There will be an in-person hearing on the case on July 12 at 9 AM in the court of Judge Carlton Reeves.

If you have feedback or questions for either side in US v. Mississippi, here is their contact information:
For the State of Mississippi:
Doug T. Miracle, Civil Litigation
Office of Attorney General Lynn Fitch
601.359.3680
doug.miracle@ago.ms.gov
For the United States:
Sarah L. Malks
Outreach Specialist
Civil Rights Division, US Department of Justice
iPhone 202.598.5344
Sarah.Malks@usdoj.gov

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