Negotiations Over in Troupe v. Barbour | Jackson Free Press | Jackson, MS

Negotiations Over in Troupe v. Barbour

Former Gov. Haley Barbour (left) and current Gov. Phil Bryant (right) are defendants in the Troupe v. Barbour case, filed on behalf of children who are not receiving mental-health care services the law entitles them to. File Photo/Trip Burns; Imani Khayyam

Former Gov. Haley Barbour (left) and current Gov. Phil Bryant (right) are defendants in the Troupe v. Barbour case, filed on behalf of children who are not receiving mental-health care services the law entitles them to. File Photo/Trip Burns; Imani Khayyam

J.B. was not home often when he was growing up. He cycled through 10 different psychiatric hospitals and long-term residential treatment facilities in his lifetime. He has never had access to home- and community-based services for mental-health care in Mississippi, despite the federal mandate for states to provide such care with their Medicaid funds.

Mississippi's short-term inpatient care and special-treatment facilities served about 542 adolescents in fiscal-year 2015, Mississippi Department of Mental Health data show.

The lawsuit filed on behalf of J.B. and the rest of the state's adolescents in need of mental-health care alleges that these children are suffering under the state's mental-health system that has invested more in institutionalization than in home- or community-based services like in-home therapy, family education and training, and therapeutic foster care—despite research that suggests the latter methods work and institutionalization does not.

In 2010, J.B. was 17 years old and living at a specialized treatment facility. He was one of four plaintiffs named in the Troupe v. Barbour lawsuit.

The fate of the almost six-year-old lawsuit representing J.B. and all children with behavioral or emotional disorders in the state is back in the hands of Judge Henry T. Wingate in the U.S. District Court in Jackson.

The case, Troupe v. Barbour, has been on hold during negotiations between the state and the Southern Poverty Law Center, which brought the lawsuit against the state in 2010.

The U.S. Department of Justice's Civil Rights Division joined negotiations following their investigation and found that Mississippi "had failed to meet its obligations" under the Americans with Disabilities Act in 2011.

Negotiations officially ended Dec. 17 when the Department of Justice and plaintiffs' counsel called an impasse. Judge Wingate will have to rule on several motions in the case: primarily the state's motion to dismiss the case as well as the plaintiff's motion to lift the stay of discovery and proceed with previous recommendations.

A Longstanding Problem

Mississippi's outdated mental-health system continues to function just as poorly as when the lawsuit was originally filed, advocates for people with mental illnesses say. The negotiations have dragged on for so long that hope of fast reform has all but vanished.

Joy Hogge, who runs Families as Allies, the state's only organization for families of children with mental-health challenges, receives calls from families needing home- or community-based care for their children but who cannot access those services. "We find that families that most need services like that are not able to access them, or when they get those services, they don't meet the children's need," Hogge said.

While one federal grant program (run through the division of Medicaid) called MYPAC offers these services to children who meet certain criteria, the program serves fewer children and families than institutional care in the state.

The Troupe v. Barbour lawsuit illustrates Mississippi's slow transition to changing practices in mental-health care that shifted focus in treatment to home- and community-based services rather than institutionalization to treat mental illness.

Mississippi is required by law to provide home- and community-based services in its state Medicaid plan to all eligible children under age 21.

Hogge said the whole system of care needs a paradigm shift to focus on patient-centered care, a nationally recognized best practice to approaching mental health care that has proved to be more effective than institutionalization. Care should start, she said, before children get to the point of crisis and institutionalization becomes necessary.

"How do you support families before they get to some point where kids have to come out of the home?" Hogge asked.

Patient-centered care, another name for home- and community- based care, is the answer that national research and even Mississippi's state law provides.

State agencies have a long way to go.

The Death of Negotiation

On Dec. 17, 2014, all parties involved in Troupe v. Barbour held a conference call with Judge Wingate to disclose that negotiations have failed.

Conference-call transcripts reveal that negotiations were still going well at the end of September, but by December, the parties reached an impasse because the Department of Justice, the Southern Poverty Law Center and the Bazelon Center for Mental Health Law (the latter two are representing the plaintiffs) said a compromise was not possible because of the importance of court enforceability in the case.

The conference-call transcript shows that litigators from all parties agree on what they'd like to see change in the system (no specifics were spelled out on the call), but they disagreed about the means by which to achieve those changes.

"There's just this disagreement over consent decree versus private settlement versus enforcement," Deena Fox, an attorney with the Department of Justice, said on the call. A consent decree would force the state to comply with the law, enforceable in federal court and made public, while a private settlement would not be court-enforced or made public record.

Fox asked Judge Wingate to address outstanding motions in the case because negotiations could not continue. "Children in the state have been waiting for far too long for services in the community and are currently in institutions unnecessarily as a result," Fox said on the conference call.

On the call, Fox said even after eight months of negotiating just the substance of what the actual agreement would say, disagreements on "key issues" unraveled any progress made in negotiations.

Details in this case are hard to come by. An independent vendor conducted a report detailing what some of these "issues" might be in 2014. The report was barred from public access by protective order in early 2015. Despite negotiations ending, the Jackson Free Press's recent public-records request for the report was denied.

"We are disappointed that such lengthy negotiations did not yield an acceptable resolution, particularly because children continue to languish in facilities as a result of the state's failure to provide appropriate and necessary services," SPLC Managing Attorney Jody Owens said in a statement following the conference call.

Mississippi Attorney General Jim Hood said in a statement that the state is disappointed that the Department of Justice and plaintiffs temporarily ended the negotiations. The state is asking Judge Wingate to recognize the recommendation of the first magistrate's judge who presided over the case.

"The State remains open to future discussions, and we are confident that negotiations will resume in the near future," the statement said. "It is our hope that if the magistrate judge's recommendation to dismiss most of the case is accepted, the Plaintiffs will then see wisdom of resuming discussions with the State." Wingate must decide whether to dismiss the case—as a magistrate judge did previously—or proceed with a trial.

The U.S. Department of Justice has not filed a lawsuit in the case, but as in cases similar to Troupe v. Barbour around the country, a lawsuit from the DOJ might be a possibility.

Ira Burnim, the director of the legal team at the Bazelon Center for Mental Health Law, said the Department of Justice's process usually includes a lawsuit if settlement agreements fail.

"If Mississippi had stepped up to plate and developed the services to solve the problem, then I can understand there being no need for a settlement," Burnim said. Because that hasn't happened, the future of mental-health care for the state's youth now sits in the hands of one federal judge in Jackson.

Email legislative news tips to staff reporter Arielle Dreher at arielle@jacksonfreepress.com. Comment at www.jfp.ms.

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