Chisholm, et al v. Jindal, et al
ORDER AND REASONS. It is ORDERED that the Motion to Vacate the 2014 Stipulated Order (Rec. Doc. 420 ) is DENIED. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MELANIE CHISHOLM, ON BEHALF
OF MINORS, CC AND MC, ET AL
REBEKAH GEE, SECRETARY OF
THE LOUISIANA DEPARTMENT OF
HEALTH AND HOSPITALS
ORDER AND REASONS
Before the Court is a Motion to Vacate the 2014 Stipulated
Order (Rec. Doc. 420) filed by Dr. Rebekah Gee, in her official
capacity as the Secretary of the Louisiana Department of Health
Plaintiffs filed an opposition to LDH’s motion (Rec.
Doc. 424), LDH filed a reply (Rec. Doc. 432), and Plaintiffs filed
a supplemental memorandum (Rec. Doc. 437).
On July 19, 2017, the
Court heard oral argument on the motion and took the matter under
Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion
should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This litigation dates back to 1997, when Plaintiffs first
alleged that the Louisiana Department of Health and Hospitals
(“LDHH”) (now called the Louisiana Department of Health (“LDH” or
“the Department”)) violated federal Medicaid law by not providing
people with Autism Spectrum Disorder (“ASD”) sufficient access to
behavioral and psychological services.
Plaintiffs were certified
as a class of “all current and future recipients of Medicaid under
the age of twenty-one who are now and will in the future be placed
on the Mental Retardation/Developmental Disabilities (“MR/DD”)
Waiver waiting list.”
(Rec. Doc. 118 at 1.)
Following a bench
trial, the Court issued Findings of Fact and Conclusions of Law on
February 2, 2001 determining that LDHH violated federal law by
failing to make behavioral and psychological services available.
Id. at 21-22.
The Court ordered the parties to confer and jointly
submit a proposed remedy for the violations.
Id. at 23.
The parties agreed on a proposed remedy which the Court
entered as a remedial order on June 27, 2001 (“2001 Remedial
(Rec. Doc. 124.)
Nearly a year later, on June 14, 2002,
the Court found LDHH to be in contempt of the 2001 Remedial Order
and entered an Order to that effect (“2002 Contempt Order”).
2002 Contempt Order was intended to improve compliance by LDHH and
compensate class members for the failure to comply.
140 at 3-4.)
It stated that the “remedy may . . . be ended by
agreement of the parties, approved by the Court, or by further
Order of the Court.”
Id. at 4.
Additionally, the 2002 Contempt
Order provided that “[e]ither party may by motion seek modification
of the alternative remedy ordered herein.” Id.
Nearly a decade later, Plaintiffs requested that the Court
modify the 2002 Contempt Order to adapt to changes in treatment of
ASD. (See Rec. Doc. 364).
The treatment of children with ASD had
evolved significantly in the decade since 2001 and new therapies
had become available.
In particular, a therapy called Applied
Behavioral Analysis (“ABA”) developed and proved to be successful
in improving the intellectual functioning of people with ASD.
new type of professional also developed; specialists called Board
Certified Behavior Analysts (“BCBAs”) became prevalent and often
provided ABA services.
On February 27, 2013, Plaintiffs moved the
Court to modify the 2002 Contempt Order by requiring LDHH to enroll
BCBAs as Medicaid providers.
The Department opposed this request.
On May 21, 2013, after hearing oral argument on the motion, the
Court modified the 2002 Contempt Order to require LDHH to enroll
As LDHH began implementing the 2013 Contempt Order, the
parties entered into negotiations to replace some of the obsolete
obligations left from the previous three orders and to consolidate
the Department’s responsibilities.
(See Rec. Doc. 404-1 at 3-4.)
The parties jointly proposed a stipulated order (“2014 Stipulated
Order”), which the Court approved and entered on April 1, 2014.
(Rec. Doc. 408.)
The 2014 Stipulated Order vacated the 2002 and
2013 Contempt Orders and modified the 2001 Remedial Order “such
that its terms are superseded by and replaced with the terms in
the revised remedial order submitted by the parties.”
The 2014 Stipulated Order provides that after thirty months
from its entry, “[LDH] may move to vacate this Order on the grounds
that [LDH] has achieved and maintained compliance for a sufficient
period of time to warrant relief under Federal Rule of Civil
(Rec. Doc. 408 at 14.)
The thirty month
anniversary of the 2014 Stipulated Order was October 1, 2016.
now moves to vacate the 2014 Stipulated Order and Plaintiffs oppose
LDH filed this motion pursuant to Federal Rule of Civil
Procedure 60(b)(5) (“Rule 60(b)(5)”).
Rule 60(b)(5) permits the
Court to “relieve a party or its legal representative from a final
judgment, order, or proceeding” when the movant has established
that one of three independent grounds has been met: (1) “the
judgment has been satisfied, released, or discharged;” (2) “it is
based on an earlier judgment that has been reversed or vacated;”
or (3) “applying it prospectively is no longer equitable.” Fed. R.
Civ. P. 60(b)(5); See Frew v. Janek, 780 F.3d 320, 327 (5th Cir.
Here, LDH requests relief based upon the first ground for
having satisfied the 2014 Stipulated Order or based upon the third
ground because it argues that applying the 2014 Stipulated Order
prospectively would no longer be equitable.
However, the briefing
for this motion focuses primarily upon whether LDH has satisfied
its obligations under the 2014 Stipulated Order and not upon
whether prospective application would be equitable.
Motions for termination of consent decrees are rarely based
upon the state agency having satisfied the terms of the order.
See Frew, 780 F.3d at 327 (noting that Rule 60(b)(5) motions based
upon the first ground of Rule 60(b)(5)
are “almost never applied
to consent decrees”). As the Fifth Circuit has acknowledged, there
is “very little applicable precedent interpreting this clause” in
the context of consent decrees that involve institutional reform.
principles of contract interpretation to a consent decree to
determine whether the judgment had been satisfied.
See id. at
More often, movants bring Rule 60(b)(5) motions pursuant to
The standard for modification of consent decrees based
on that ground is a “flexible one.”
Frazar v. Ladd, 457 F.3d 432,
436 (5th Cir. 2006) (quoting Rufo v. Inmates of Suffolk Cty. Jail,
502 U.S. 367, 393 (1992)).
The moving party “bears the burden of
establishing that a significant change in circumstances warrants
revision of the decree.”
The movant can meet this burden by
conditions or in law” has occurred.
Id. at 436.
The court then
determines if the “proposed modification is suitably tailored to
the changed circumstance.”
It should be noted that although
LDH requests vacatur on this ground, neither party has briefed
whether prospective application would be equitable.
The issue before the Court is whether LDH has achieved and
maintained compliance sufficient to vacate the 2014 Stipulate
The 2014 Stipulated Order contains several requirements,
some of which have undisputedly been met.
For instance, LDH has
ensured that a wide range of mental health and family services are
provided to the class and managed through Louisiana’s Medicaid
Additionally, LDH has established a program for providing
ABA therapy services to class members.
However, Plaintiffs claim
that LDH has failed to comply with five requirements of the 2014
Stipulated Order: (1) the requirement to provide services with
reasonable promptness of 42 U.S.C. § 1396a(a)(8); (2) the equal
provision of emergency mental health services; (4) the provision
of psychological and behavioral health services other than ABA;
and (5) updating informing and training manuals. Of these disputed
promptness was the most thoroughly discussed topic.
Court finds that LDH has not demonstrated compliance with the
reasonable promptness provision, the other disputed issues need
not be taken up at this time.
The 2014 Stipulated Order includes a provision that states:
“Medical assistance provided under this Order, including but not
limited to Applied Behavioral Analysis (ABA) therapy, shall be
members, as required by 42 U.S.C. § 1396a(a)(8).”
(Rec. Doc. 408
Section 1396a(a)(8) requires state plans for medical
assistance to permit all individuals the right to apply for medical
assistance and requires that “such assistance shall be furnished
with reasonable promptness to all eligible individuals.”
parties disagree about whether LDH has satisfied its obligation to
provide medical assistance to the class members with reasonable
Plaintiffs argue that despite the changes implemented
by LDH pursuant to the 2014 Stipulated Order, many class members
still have to wait too long before receiving ABA services.
point to evidence that suggests many class members are on waitlists
for a year or longer before receiving ABA services and argue that
waitlists of that length put LDH out of compliance with the
reasonable promptness provision.
LDH acknowledges that some class
members experience a delay in receiving ABA services, but the
Department disputes the number of class members who are actually
waiting for extended periods.
LDH also attributes the delays to
a lack of qualified professionals in Louisiana licensed to provide
Definition of “Medical Assistance”
As an initial matter, the Court must address the definition
of “medical assistance” in the Medicaid Act.
In 2009, the Fifth
Circuit held that medical assistance, as defined in the Medicaid
Act, referred to the payment for various medical services rather
than the actual provision of the services.
Equal Access for El
Paso, Inc. v. Hawkins, 562 F.3d 724, 727 (5th Cir. 2009).
court noted that the Medicaid Act defined medical assistance as
the “payment of part or all of the cost of . . . care and services”
for eligible individuals.
Id.; see § 1396d(a) (2006).
medical assistance was defined in “financial terms,” the court
found that the reasonable promptness requirement of § 1396a(a)(8)
“refers to financial assistance and not actual medical services.”
Id. at 727, 728.
However, Congress amended the definition of
medical assistance one year after the Fifth Circuit made this
As part of the Patient Protection and Affordable Care
Act, the definition of medical assistance under § 1396d(a) was
expanded to include “payment of part or all of the cost of the .
. . care and services or the care and services themselves, or both.
. . .”
§ 1396d(a) (amended March 23, 2010) (emphasis added).
Although the Fifth Circuit has not had occasion to revisit its
holding in Equal Access for El Paso, Inc. v. Hawkins since the
amendment of § 1396d(a), the new language of the statute clarifies
that medical assistance involves the provision of services.
John B. v. Emkes, 852 F. Supp. 2d 944, 951 (M. D. Tenn. 2012),
aff’d 710 F.3d 394 (6th Cir. 2013).
Thus, the Court is satisfied
that the Medicaid Act’s reasonable promptness requirement now
requires timely provision of care and services, and not just
payment for those services.
III. Evidence of Delays in Obtaining ABA Services
Plaintiffs have submitted evidence tending to demonstrate
that class members must wait significant periods before receiving
Their submissions include a declaration by Jeanne
Abadie, the Compliance Specialist for the Advocacy Center of
Ms. Abadie provided a review of all reports made to
the LDH call center 1 from May 2014 through December 2016.
percent of the callers were waiting to obtain ABA services and
only eleven percent of the callers were receiving ABA services.
(Rec. Doc. 424-4 at 2.)
Plaintiffs also report that eleven class
members who had been in contact with the call center in the month
of December 2016 had been waiting to receive ABA services for at
1 LDH maintains a telephone call center staffed by one or more LDH employees or
contractors so that class members can call to receive assistance with being
connected with services. (Rec. Doc. 408 at 4.) The maintenance of this call
center is required by the 2014 Stipulated Order. Id.
least six months, and three of these class members had been waiting
for over a year.
declarations from seven providers of ABA services in Louisiana. 2
Each ABA provider’s declaration included the number of people on
waitlists to receive ABA services.
In aggregate, the number of
people on the waitlists was 1,141, and 717 of the people were on
Of those people on the waitlist, eighty-five had been
on it for five-to-six months, ninety had been on the waitlist for
six-to-nine months, 196 had been on the waitlist nine months-toone year, and 318 had been on the waitlist for longer than one
(Rec. Doc. 434-2 at 2.)
The chart does not distinguish
whether or not the people received Medicaid when breaking down the
amount of time they have been on the waitlist.
LDH argues that Plaintiffs fail to present the whole picture
and that their argument equates to isolated examples of individual
class members waiting to receive services.
To make this point,
LDH attempts to discredit Plaintiffs’ examples of delays by either
blaming parties independent from LDH (see Rec. Doc. 432 at 2-3) or
The seven providers are: the Emerge Center, which provides services in Baton
Rouge; the Touchstone Center, which provides services in Southeastern Louisiana;
Butterfly Effects, which provides services in New Orleans and Baton Rouge;
Behavioral Developmental Services, LLC, which provides services in Monroe, West
Monroe, Ruston, Olla Jena, and Winnsboro; Spears Learning Center, which provides
services in New Orleans; Northshore Autism Center, which provides services in
Mandeville; Autism Spectrum Therapies, which provides services in Southeast
Nevertheless, LDH acknowledges that some class members experience
delays before receiving ABA services.
At oral argument, counsel
for LDH reported that the Louisiana Medicaid office sent out an
anonymous survey in June 2017 to all eighty-eight ABA providers in
Louisiana that are enrolled in Louisiana Medicaid.
providers responded to the survey.
Of that number, only twenty
providers reported the length of time that applicants must wait
before receiving ABA services. 3
These wait times varied from two
weeks at the shortest to greater than one year at the longest.
Counsel for LDH stated that two providers reported wait times that
exceeded a year. About half of the respondents reported that the
wait times were the same for children with Medicaid as for children
Although “reasonable promptness” is not defined by hard and
fast parameters, the term “is not so ‘vague and amorphous’ as to
exceed the judiciary's competence.”
Romano v. Greenstein, 721
F.3d 373, 378 (5th Cir. 2013) (quoting Blessing v. Freestone, 520
specific and definite standard readily susceptible to judicial
Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d
Counsel for the LDH stated that these responses included: five from Region
One; three from Region Two; two from Region Eight; one from Region Four; one
from Region Six; one from Region Seven; one from Region Nine; and four from
709, 717 (11th Cir. 1998).
The Medicaid regulations accompanying
§ 1396a(a)(8) clarify its scope.
42 C.F.R. § 435.930.
require the agency to:
A. Furnish Medicaid promptly to beneficiaries without any
delay caused by the agency's administrative procedures;
B. Continue to furnish Medicaid regularly to all eligible
individuals until they are found to be ineligible; and
C. Make arrangements to assist applicants and beneficiaries
to get emergency medical care whenever needed, 24 hours
a day and 7 days a week.
procedures that “establish adequate measures of timeliness” to
ensure that reasonable promptness is being achieved.
See Kirk T.
v. Houstoun, No. CIV. A. 99-3253, 2000 WL 830731, at *4 (E.D. Pa.
June 27, 2000).
They also require that the state’s own procedures
do not inhibit the prompt delivery of services.
mismanagement of allocated funding leads to an unreasonable delay
in the provision of services).
Some courts have found that agencies violated the reasonable
promptness provision by placing eligible individuals on waitlists
See, e.g., Sobky v. Smoley, 855 F. Supp. 1123, 1148
(E.D. Cal. 1994) (discussing the Congressional history of the
reasonable promptness provision and stating that § 1396a(a)(8)
prohibits states from responding to budgetary constraints in such
a way as to cause otherwise eligible recipients to be placed on
objectionable” the failure by state agencies to create time lines
for the beginning of treatment after the necessity of Medicaid
services had been decided.
Kirk T., 2000 WL 830731, at *3.
Eleventh Circuit has suggested that there may be a range of
reasonable time periods for the provision of assistance.
136 F.3d at 717.
However, it reasoned that certain delays, such
as delays of several years would be “far outside the realm of
Id.; see also Benjamin H. v. Ohl, No. CIV.A.
3:99-0338, 1999 WL 34783552, at *15 (S.D.W. Va. July 15, 1999)
(granting a preliminary injunction when the court found that
“[m]any eligible individuals remain on waiting lists for months,
or even years, for services which never materialize”).
Diagnosis and Treatment (“EPSDT”) requirements for determining
what constitutes reasonable promptness. See Rosie D. v. Romney,
410 F. Supp. 2d 18, 27 (D. Mass. 2006)
The Medicaid Act requires
access to “early and periodic screening, diagnostic, and treatment
See § 1396d(r).
as EPSDT eligible.
The class members in this case qualify
(See Rec. Doc. 391 at 5, 8.)
include a provision that sets a timeline for services.
to this provision, “the agency must set standards for the timely
provision of EPSDT services which meet reasonable standards of
medical and dental practice . . . , and must employ processes to
ensure timely initiation of treatment, if required, generally
within an outer limit of 6 months after the request for screening
42 C.F.R. § 441.56(e) (emphasis added).
The court in
Rosie D. v. Romney referred to this regulation when analyzing
promptness to EPSDT eligible plaintiffs.
410 F. Supp. 2d at 27.
At this time, questions remain about how long class members
are currently waiting to receive ABA services. However, Plaintiffs
have provided sufficient evidence that some class members are
waiting more than six months, and in some cases even longer than
a year, before receiving ABA therapy.
A multitude of evidence has
been presented over the course of this lengthy litigation that
children with autism require early and intensive intervention.
Given that context, the wait times experienced by some class
members falls outside the range that can be considered reasonably
See Oklahoma Chapter of Am. Acad. of Pediatrics (OKAAP)
v. Fogarty, 366 F. Supp. 2d 1050, 1109 (N.D. Okla. 2005) (holding
that the state health authority violated the reasonable promptness
provision after the plaintiffs provided “substantial evidence that
the delays in treatment for children with specific conditions are
medically inappropriate”); J.E. v. Wong, No. 14-00399 HG-KJM, 2016
WL 4275590, at *10 (D. Haw. Aug. 12, 2016) (“A period of twelve
months is significant for children whose development depends on
effective treatment for the serious condition of autism.”)
Much of the debate between the parties revolves around whether
the delays experienced by class members have been caused by the
Department’s administrative procedures or by factors outside the
See 42 C.F.R. § 435.930(a).
LDH blames the
delay on a lack of BCBAs and psychologists in Louisiana who provide
ABA services. According to LDH, “[s]ervice providers are desperate
for new BCBA hires,” but Louisiana institutions of higher education
cannot provide enough graduates to meet the demand.
the Court to a recent report by a Louisiana non-profit organization
called the Baton Rouge Area Foundation (“BRAF”).
2 at 14.)
(Rec. Doc. 432-
The BRAF report addressed the availability of ASD
resources in the area around Baton Rouge and found that there is
a shortage of trained BCBAs.
The BRAF report recommended that
educational institutions of Louisiana invest in training for these
In short, LDH blames any delay in services on a
Plaintiffs argue that the delays have been caused, at least
in part, by the insufficient rate that LDH pays providers for ABA
services. When the parties entered into the 2014 Stipulated Order,
the Louisiana Medicaid reimbursement rate was $72 per hour for ABA
therapy provided by a licensed behavior analyst and $50 per hour
for ABA services provided by a behavior technician.
Doc. 424 at 16.)
On January 1, 2017, LDH reduced the reimbursement
rate it provided to all Louisiana Medicaid ABA providers.
Rec. Doc. 424-7 at 1.)
The new reimbursement rate is $46 per hour
for ABA therapy provided by a licensed behavior analyst, $38 per
hour for ABA services provided by a behavior technician without a
bachelor’s degree, and $46 per hour for behavior technicians with
a bachelor’s degree.
Id. at 2.
In an Emergency Rule published on
December 20, 2016, the LDH made clear that the reimbursement rate
reduction was part of a plan to avoid a budget deficit in the
(Rec. Doc. 424-17 at 5.)
LDH argues the reduction in the reimbursement rate has not
members because the current rates match the reimbursement rate of
Louisiana’s largest insurance provider: Blue Cross Blue Shield of
increased its payment rate to the rate that the State’s largest
(Rec. Doc. 408 at 6.)
In 2016, BCBS-La reduced its
corresponded by reducing its reimbursement rates to match those of
Thus, LDH argues that the decision to match the rate
paid by BCBS-LA was made in compliance with the 2014 Stipulated
procedure that has caused delays.
Although the cause of the delays has not been conclusively
established, there is evidence that the reduced reimbursement
rates have played a role in increasing the period class members
statement from the president of a large ABA provider who confirmed
that the reduction in rates will result in that provider placing
Medicaid recipients at the lowest priority on the waitlist because
Louisiana Medicaid “now pays lower than all other payers in the
(Rec. Doc. 424-3 at 2.)
Plaintiffs also submitted
surveys of ABA providers conducted by the Louisiana Coalition for
Access to Autism Services (“LCAAS”).
(Rec. Doc. 424-20.)
summary of the survey suggested that clinics will be forced to
cease accepting Medicaid patients due to the reduced rate and, as
a result, wait times will increase.
Id. at 2.
counsel for LDH stated at oral argument that six of the twenty ABA
therapy providers that responded to the Louisiana Medicaid office
survey listed the reduction in reimbursement rates as a cause for
The evidence before the Court suggests that numerous
class members are waiting in excess of six months, and in some
cases greater than one year before receiving ABA treatment.
evidence also suggests that these delays have been caused, at least
in part, by the reduction in reimbursement rates for ABA services.
Even if, as LDH argues, a major contributor to the delays is a
Department still must take efforts to mitigate this problem.
reimbursement rate for ABA services must not be set so low as to
“frustrate the reasonable promptness provision.”
For All, Inc. v. Romney, No. CIV.A. 00-10833RWZ, 2005 WL 1660677,
at *10 (D. Mass. July 14, 2005) (“Setting reimbursement levels so
low that private dentists cannot afford to treat Medicaid enrollees
assistance at all, much less in a timely manner.”)
reimbursement rate has been in effect for less than one year, and
the extent to which it has caused class members to experience
delays in receiving ABA services is uncertain.
At this point, the
LDH has not satisfied its burden of demonstrating that it has
complied with the 2014 Stipulated Order’s requirement that it
provide the treatment with reasonable promptness.
IT IS ORDERED that the Motion to Vacate the 2014 Stipulated
Order (Rec. Doc. 420) is DENIED.
New Orleans, Louisiana, this 30th day of August, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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