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At the beginning of November, the State of Mississippi filed its response to the proposed budget that had been submitted by the Monitor in the U.S. v Mississippi mental health lawsuit. The Monitor (Dr. Michael Hogan) had submitted his proposed budget to the parties and the Court on October 18, 2021, and in that budget, he stated that his staff requirements would be higher than anticipated, and he also included $44,000 as a contingency for possibly retaining experts to assist him in analyzing and validating data.

The State’s objections are primarily focused on the Monitor submitting a higher than expected budget in part because “the State will not conduct the anticipated Clinical Review process”. In its filing, the State asks that while the case is partially stayed by the Court the Monitor “should incur no costs-directly or indirectly” that are connected to the provisions of the Remedial Order. In addition, the State asks the court to allow it to object to any of the invoices that the Monitor submits while the partial stay is in effect.

On November 15th the United States Department of Justice submitted its response to the State’s filing. In its response, the United States argues that while the Court did stay the State-run clinical review process, under the Remedial Order the Monitor must be able to review the State’s overall compliance with the Remedial Order so that he can validate it. The United States response points out that this review by the Monitor is not a substitute for the larger State-led clinical review which is subject to the partial stay and that Judge Reeves had mandated in the Remedial Order. The United States asks that the Court “affirm the Monitor’s authority to conduct such reviews and incur costs for that work as needed.”

It also points out that his duties, as outlined in his Appointment Order, are to “address compliance with each obligation in the Court’s Remedial order, and…provide the State with technical assistance as necessary to support the State in reaching compliance.” And it stresses that the “Monitor’s ability to look behind summary data” on the provision of services is “vital to validating the State’s performance”, and that the Monitor “must also evaluate the experiences of individuals actually receiving services, or who are eligible for services…so that he can accurately report to the Court on the State’s progress toward compliance”.

Accordingly, the United States asks that the Court confirm that Dr. Hogan and his staff can review clinical files and also conduct interviews with individuals receiving mental health services in Mississippi so that he can evaluate the State’s compliance with the Remedial Order.

The State filed its rebuttal to the US response, repeating its assertion that Dr. Hogan should not be permitted to incur any costs, directly or indirectly, connected to the provisions of the Remedial Order that were stayed by the court, in particular the provision related to the clinical review.

In its rebuttal, the State argues that Dr. Hogan’s Order of Appointment cannot and does not amend the Remedial Order and that there are no remedial obligations set forth in his order of appointment. It points out that there is only one mention of a clinical review in the Remedial Order, in paragraph 23, and that paragraph was stayed by the court. The State says that the United States’ position that “the Order of Appointment supersedes the Remedial Order, and its expansive interpretation of both Orders, are contrary to law.”

The State also takes issue with what it describes in the rebuttal as a “make-it-up-as-you-go interpretation of the Remedial Order” by the United States, and asks the Court to summarily reject the interpretation that there is a monitor-led review in addition to the annual Clinical Review (which is stayed). It says that the United States never suggested a “Monitor-led review during trial, in its 121-page Proposed Findings of Fact and Conclusions of Law (ECF 233), or in its Proposed Remedial Plan (ECF 265-1)”, and that the only mention of a “clinical review” is for Mississippi, not Dr. Hogan. The State says that the United States “fails to explain why there should be two clinical reviews.”

The State repeats its request to the court that it be allowed to object to any of Dr. Hogan’s invoices, and that Dr. Hogan not incur any costs, directly or indirectly, in connection with the provisions of the Remedial Order that are stayed. It also points out to the Court that it cannot make its initial payment to the Dr. Hogan without a court order, and asks the Court to do so.

Although Families as Allies is not in a position to judge the legal arguments in this dispute, we are concerned that the State’s actions follow a long term pattern of preventing any input from the very people that this case is about: people with mental illness. Who better to let the State know what is needed? Yet, the people this lawsuit was meant to protect have been silenced at every turn.

The State’s unrelenting objections to this input begs the question, what is the State afraid it will learn? The State’s attorneys have spent the last two years arguing in court that there was never any reason to file this lawsuit and the problems have already been fixed even if there was. If that’s the case, why wouldn’t the State’s attorneys welcome confirmation from the people using the system?

Note:
The parts of the remedial plan that were stayed are: expanding peer support to satellite mental health clinics; increasing the number of housing vouchers; doing a clinical review of whether clinical services help people, and developing a plan to implement the remedy. The State argued that these requirements were not funded by the legislature and that implementing these changes would fundamentally alter the state mental health system.

For more background on the Partial Stay of the Remedial Order:
Judge Reeves Issues Partial Stay in Mental Health Lawsuit
US Judge Issues Partial Stay For Mississippi in Federal Mental Health Lawsuit
(Steve Wilson, Northside Sun)