O. et al v. Mackereth

Filing 113

ORDER granting in part 81 First MOTION to Enforce Settlement Agreement filed by Sonny O., Jr.. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on March 18, 2019. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SONNY O., Jr., by his mother and
Next Friend Maria G., DANIEL D.,
by his mother and Next Friend,
Nadine D., and VALERIE H., by her
mother and Next Friend, Liliya H.,
Plaintiffs,
v.
TERESA MILLER, in her official
capacity as Acting Secretary of Human
Services of the Commonwealth
of Pennsylvania,
Defendant.

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CIVIL NO. 1:14-CV-1110

(Magistrate Judge Carlson)

ORDER
AND NOW this 18th day of March 2019, this case comes before the court for
further consideration of the plaintiff=s motion to enforce settlement agreement, (Doc.
81), which seeks the court’s intervention in order to ensure the timely promulgation
of regulations by the defendants consistent with the terms of the settlement
agreement executed by the parties and approved by the court in June of 2016. For
the reasons set forth below, this motion is GRANTED, in part, as follows:
By way of background, in January of 2016 the parties entered into a settlement
which, in part, called upon the defendants to promulgate regulations within 18
months to ensure access to health care services for children in the autism spectrum

community. This settlement was approved by the court in June of 2016, and under
the terms of the agreement the initial deadline for promulgating these regulations
was July of 2017.1
The regulations contemplated under the settlement agreement were not
promulgated in a timely fashion, and the plaintiffs accordingly filed a motion to
enforce the settlement agreement in December of 2017. (Doc. 81.) Since that time
the court has mandated mediation efforts and has closely monitored the defendant’s
progress in coming into compliance with the promises it made in 2016. While these
mediation efforts have made some progress, at present we have neither regulations,
nor a fixed timetable for the promulgation of these regulations, an outcome which
violates the terms of this settlement agreement.

It is against the backdrop of this protracted delay that we have considered the
defendants’ latest proposal, which would have us extend the deadline for the
Department of Human Services to complete its portion of the regulatory process to
July 31, 2019, and would not set any deadlines for actual final adoption and
implementation of these regulations by the Commonwealth as a whole. In effect,
the defendant’s proposal would ask us to extend the deadline for partial
compliance with the promises it made to the thousands of Pennsylvania families
facing the challenges of autism spectrum disorders by more than two years from
the deadlines first agreed to by the parties without a firm commitment as to when
this regulatory process would ultimately end. Mindful of the Commonwealth’s
obligation to fulfill this settlement agreement, and its promises to families facing
autism, we will decline this invitation.

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Accordingly, on February 27, 2019, we informed the parties that we intended
to set a mandatory schedule for completion of this long-delayed commitment. At the
Commonwealth’s request, we then provided the parties with a limited opportunity
to determine whether they can mutually agree to this timetable for action, but it is
now reported that the parties have not been able to reach agreement on a timetable
for resolution of these matters. Therefore it falls to the Court to set such a schedule.
Accordingly, IT IS ORDERED as follows:
1. The Defendant shall send its final version of the proposed regulations,
which will be consistent with the agreed-upon requirements for the
qualifications, training and supervision of ABA providers set forth in
paragraph 4 of the settlement agreement, to the Governor’s office by May
17, 2019. If the proposed regulations are returned to the Department with
questions or revisions, Defendant shall provide all necessary responses
within three weeks.
2. The Defendant shall ensure that the final proposed regulations are
submitted to the Independent Regulatory Review Commission (IRRC) by
July 19, 2019, in time to be promulgated by October 18, 2019.
3. In the interim, Defendant shall, by May 17, 2019, inform its behavioral
health managed care organizations of the proposed qualifications, training
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and supervision requirements for ABA providers that the Department
expects to be included in the regulations, and of the need to have the
capacity to meet those requirements.
4. The Court recognizes that elements of the timetable prescribed by this
order call upon actions by components of state government that are not
specifically named as defendants in this lawsuit. Recognizing that the
Commonwealth made a commitment in 2016 to have regulations
promulgated by July of 2017, which has not yet been fulfilled, and that
thousands of Pennsylvanians who face the challenges of autism spectrum
disorders are relying upon the Commonwealth and the parties to abide by
their commitments, IT IS FURTHER ORDERED that the defendant shall
provide copies of this order to officials in those other entities of state
government which are responsible for implementing the regulations called
for under this agreement, so that the Commonwealth as a whole may be
informed of these deadlines. In the event that the plaintiffs, or any
component of state government objects to these deadlines, or any
substantive aspects of the court’s order, they must do so in writing no later
than May 1, 2019. Any objections should explain in detail why certain
substantive aspects of the order should be reconsidered, describe why more
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than two years beyond the deadlines initially set forth in the settlement
agreement are now necessary to complete this process, and provide
specific proposed mandatory deadlines for completion of all aspects of this
process.

S/Martin C. Carlson
MARTIN C. CARLSON
United States Magistrate Judge

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