Chisholm, et al v. Jindal, et al

Filing 295

ORDER denying 286 Motion to Dismiss Plaintiff's Motion to Enforce Stipulations and Orders. FURTHER ORDERED that the submission date for 275 MOTION to Enforce Stipulations and Orders is reset to 3/14/2012. Signed by Judge Carl Barbier. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GRAYSON TSE, ET AL., ON
BEHALF OF THEMSELVES AND
OTHERS SIMILARLY SITUATED

CIVIL ACTION

VERSUS

NO: 97-3274

BRUCE GREENSTEIN, SECRETARY
OF LOUISIANA DEPARTMENT OF
HEALTH AND HOSPITALS

SECTION: J(5)

ORDER AND REASONS
This matter is before the Court on Defendant’s Motion to
Dismiss Plaintiffs' Motion to Enforce Stipulations and Orders
(Rec. Doc. 286).

Plaintiffs oppose the motion.

PROCEDURAL HISTORY AND BACKGROUND FACTS
This case was brought in 1997 to require the Louisiana
Medicaid agency to comply with its statutory duty to arrange for
medically necessary services for a class of children with severe
developmental disabilities – those on a waiting list to receive
expanded services under a Medicaid program, previously called the
“MR/DD Waiver” and now referred to as the “NOW Waiver,” that
provides home and community-based services to persons who meet
the requirements for care in an institution.
Congress amended the Medicaid statute in 1989 to require

states to determine the need for services and to provide all
medically necessary coverable services to recipients
under the age of 21.

As a result, many of services that class

members thought could be obtained through the MR/DD Waiver should
instead have already been available to them through Louisiana’s
Medicaid program.

The plaintiffs originally alleged, among other

things, that the Louisiana Department of Health and Hospitals
(“the Department”) employed a cumbersome and unwieldy system of
prior authorization requirements in order to deny access to many
of these services.
While the case was pending, the parties were able to resolve
their dispute through a series of court-approved stipulations and
orders.

These stipulations and orders created a set of

procedures to be utilized when the Department communicated with
class members, their physicians, or other service providers about
prior authorization requests, as well as when the Department
authorized or denied services.1

This Court retained jurisdiction

over this matter to ensure that the stipulations were implemented
and enforced, as well as to resolve any future disputes regarding
the parties’ agreements.
Over nine years later, in late 2011, Plaintiffs filed a
motion alleging that the Department was violating certain

1

See Rec. Docs. 43; 117; 139; 144.

stipulation provisions and seeking an order requiring it to
remedy its alleged non-compliance.

In response, however,

Defendant filed the instant motion seeking to dismiss Plaintiffs’
motion based on their purported failure to comply with the
stipulations’ written notice requirement prior to seeking
judicial enforcement.
DISCUSSION
Each of the stipulations and orders that are the subject of
Plaintiffs’ motion provide a required course of action in the
event that any class member believes that the Department has
failed to comply with any obligation imposed therein.

The

stipulations’ enforcement provisions each state, in pertinent
part:
“In the event that class members seek to enforce this
stipulation based on the belief that the defendant has
failed to discharge any of his obligations under this
stipulation, they will give written notice of such
failure to defendants counsel, specifying the grounds
that demonstrate such failure, and the defendant will
have forty-five days from the receipt of such notice to
come into or establish compliance with this
stipulation.”2
Here, Defendant alleges that the Plaintiffs failed to
provide the Department with the required written notice of a
claimed violation at least 45 days prior to seeking enforcement

2

¶ 16.

See Rec. Doc. 275-2, p. 18, ¶ 29; Rec. Doc. 275-2, p. 31,

from the Court.

Although Defendant acknowledges a series of

letters sent by Plaintiffs’ counsel from July to August 2011,
they characterize this correspondence as a set of “inquiries” and
“requests for information.”

Defendant further points out that

none of these letters reference the enforcement provisions or
explicitly state that Plaintiffs would bring an enforcement
action if the Department did not establish compliance within 45
days, in contrast to other prior letters from class members’
counsel.
In response, Plaintiffs contend that the aforementioned
letters satisfy the 45-day written notice requirement.

They note

that the claimed violations referenced in the letters – aside
from those violations which were voluntarily remedied -- are the
same violations at issue in their Motion to Enforce Stipulations
and Orders.
Here, the Court finds that Plaintiffs have satisfied the
written 45-day notice requirement.

Significantly, on its face,

the notice provision does not require written notice of the
potential enforcement action.

Rather, it only requires

Plaintiff’s to provide the Department written notice of the
alleged non-compliance.3

3

As such, there is no requirement that

See Rec. Doc. 275-2, p. 18, ¶ 29; Rec. Doc. 275-2, p. 31,
¶ 16 (“In the event that class members seek to enforce this
stipulation based on the belief that the defendant has failed to
discharge any of his obligations under this stipulation, they

the written notice explicitly refer to the stipulations’
enforcement provisions, or to the 45-day period during which the
Department can remedy the alleged non-compliance.4

Because the

correspondence referenced above satisfies the advanced notice
requirement, the Court finds that Plaintiffs are presently
entitled to seek judicial enforcement of the prior stipulations
based on the violations alleged therein.
CONCLUSION
Accordingly, for the reasons expressed above,
IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Motion to Enforce Stipulations and Orders (Rec. Doc. 289) is
DENIED.
IT IS FURTHER ORDERED that the submission date for
Plaintiff’s Motion to Enforce Stipulations and Orders is reset to
the Court’s next available hearing date, March 14, 2012.
New Orleans, Louisiana this 7th day of March, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

will give written notice of such failure to defendants counsel .
. .”)(emphasis added).
4

This analysis is not altered by the fact that other
attorneys have previously referenced such matters in past written
notices.