United States District Court, S.D. Mississippi.
MEMORANDUM OPINION AND ORDER
Carlton W. Reeves United States District Judge.
Worsham has a unique perspective on Mississippi's mental
health system. She knows the system as a patient because she
has struggled with serious mental illness (SMI) throughout
her life. But she also knows it as a professional, in her job
as a certified peer support specialist. That means Ms.
Worsham is trained to help other persons with SMI
“overcome the obstacles that might be getting in their
way of living the life they want to live. And also navigating
the system, helping to find resources, and then just being
moral support, you know, just being there for
somebody.” Trial Tr. 323.
Worsham was one of dozens of witnesses who testified in this
case about whether Mississippi unnecessarily
institutionalizes persons with SMI. The trial record spans
four weeks of testimony, thousands of pages of exhibits, and
voluminous legal briefs by both sides, and still does not
begin to reflect the enormity of Mississippi's mental
health system. One would be forgiven for throwing their hands
up in exasperation at the complexity of the situation.
reached a moment of lucidity when Ms. Worsham was
cross-examined by one of the State's attorneys. Ms.
Worsham readily testified that the State was acting in good
faith. “I think the people that I have worked with at
the Department of Mental Health really want to see this
change. I really do.” Trial Tr. 344. But Ms. Worsham
could not agree that the State was making a “major
effort” to expand community-based services throughout
It's like they stop right at that point to do the very
thing that actually would make a difference. They stop. So
there is a lot of talk, there is a lot of planning, but there
is also a lot of people being hurt in the process.
Trial Tr. 348.
Court fully agrees with Ms. Worsham. On paper, Mississippi
has a mental health system with an array of appropriate
community-based services. In practice, however, the mental
health system is hospital-centered and has major gaps in its
community care. The result is a system that excludes adults
with SMI from full integration into the communities in which
they live and work, in violation of the Americans with
Disabilities Act (ADA).
heart, this case is about how Mississippi can best help the
thousands of Melody Worshams who call our State home. The
State generally understands the urgency of these needs, and
it understands its obligations under federal law. It is
moving toward fulfilling those obligations. The main question
at trial was, has it moved fast enough to find itself in
compliance with the ADA?
United States Department of Justice has presented compelling
evidence that the answer to that question is
“no.” Mississippi's current mental health
system-the system in effect, not the system Mississippi might
create by 2029-falls short of the requirements established by
law. The below discussion explains why.
Americans with Disabilities Act
1990, Congress passed the ADA, “the last major civil
rights bill to be signed into law, ” to “provide
a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 12101
(b)(1). Congress explained in the statute exactly
what it wanted to rectify. Some of those explanations have
direct bearing on our situation nearly 30 years later.
found that “historically, society has tended to isolate
and segregate individuals with disabilities, and, despite
some improvements, such forms of discrimination against
individuals with disabilities continue to be a serious and
pervasive social problem.” Id. §
12101(a)(2). It specifically acknowledged that such
discrimination “persists in such critical areas as . .
. institutionalization” and “health
services.” Id. § 12101 (a)(3). Congress
then wrote that “individuals with disabilities
continually encounter various forms of discrimination,
including outright intentional exclusion, . . . failure to
make modifications to existing facilities and practices, . .
. segregation, and relegation to lesser services.”
Id. § 12101(a)(5).
establish a violation of the ADA, “plaintiffs must
demonstrate that (1) they are ‘qualified
individuals' with a disability; (2) that the defendants
are subject to the ADA; and (3) that plaintiffs were denied
the opportunity to participate in or benefit from
defendants' services, programs, or activities, or were
otherwise discriminated against by defendants, by reason of
plaintiffs' disabilities.” Henrietta D. v.
Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (citation
II of the ADA prohibits discrimination by public entities. It
establishes that “no qualified individual with a
disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42
U.S.C. § 12132. “Title II does not only benefit
individuals with disabilities. . . . Congress specifically
found that disability discrimination ‘costs the United
States billions of dollars in unnecessary expenses resulting
from dependency and nonproductivity.'” Frame v.
City of Arlington, 657 F.3d 215, 230 (5th Cir. 2011) (en
banc) (citations omitted).
instructed the Attorney General to promulgate regulations
implementing Title II. Those regulations require public
entities to “administer services, programs, and
activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.” 28
C.F.R. § 35.130(d). Such a setting “enables
individuals with disabilities to interact with nondisabled
persons to the fullest extent possible.” 28 C.F.R. Pt.
35, App. B. Public entities “shall make reasonable
modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the
basis of disability, unless the public entity can demonstrate
that making the modifications would fundamentally alter the
nature of the service, program, or activity.” 28 C.F.R.
§ 35.130 (b)(7)(i).
Supreme Court interpreted Title II in the landmark case
Olmstead v. L.C ex rel. Zimring, 527 U.S. 581
(1999). It first noted that “Congress explicitly
identified unjustified ‘segregation' of persons
with disabilities as a ‘form of
discrimination.'” 527 U.S. at 600 (citation and
brackets omitted). The Court then reasoned that
“unjustified institutional isolation of persons with
disabilities is a form of discrimination [that] reflects two
First, institutional placement of persons who can handle and
benefit from community settings perpetuates unwarranted
assumptions that persons so isolated are incapable or
unworthy of participating in community life.
Second, confinement in an institution severely diminishes the
everyday life activities of individuals, including family
relations, social contacts, work options, economic
independence, educational advancement, and cultural
Id. at 600-01 (citations and brackets omitted).
discrimination on the basis of disability might not be
obvious, the Court tried to explain the “dissimilar
treatment” in simpler terms. It came up with this:
“In order to receive needed medical services, persons
with mental disabilities must, because of those disabilities,
relinquish participation in community life they could enjoy
given reasonable accommodations, while persons without mental
disabilities can receive the medical services they need
without similar sacrifice.” Id. at 601
final holding reads as follows:
States are required to provide community- based treatment for
persons with mental disabilities when the State's
treatment professionals determine that such placement is
appropriate, the affected persons do not oppose such
treatment, and the placement can be reasonably accommodated,
taking into account the resources available to the State and
the needs of others with mental disabilities.
Id. at 607. This is often referred to as the
“integration man- date.” Disability
Advocates, Inc. v. Paterson (DAI I), 653 F.Supp.2d 184,
190-91 (E.D.N.Y. 2009), vacated on other grounds sub nom.
Disability Advocates, Inc. v. New York Coal. for Quality
Assisted Living, Inc. (DAI II), 675 F.3d 149 (2d Cir.
2012). “[F]ollowing Olmstead, courts have
looked to the language of the Attorney General's
regulations interpreting Title II, as well as the holding in
Olmstead, as the standard by which to determine a
violation of the ADA's integration mandate.”
Id. (citations omitted).
Olmstead spoke of “the State's treatment
professionals, ” courts recognize that any treatment
professional, whether employed by the state or not, may be
used to show that community placement is appropriate. See
Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181
(10th Cir. 2003). If establishing a case required reliance on
the government's own treatment professionals, states
could circumscribe the requirements of Title II. See
Joseph S. v. Hogan, 561 F.Supp.2d 280, 290-91 (E.D.N.Y.
2008); Long v. Benson, No. 4:08-CV-26, 2008 WL
4571904, at *2 (N.D. Fla. Oct. 14, 2008); see also Martin
v. Taft, 222 F.Supp.2d 940, 972 n.25 (S.D. Ohio 2002).
Background and Preliminary Arguments
2011, the United States Department of Justice issued a
findings letter summarizing the results of its long
investigation into the State of Mississippi's mental
health system. It concluded that Mississippi was
“unnecessarily institutionalizing persons with mental
illness” in violation of the ADA's integration
mandate. Docket No. 150-24 at 2. After years of negotiations
failed, the United States filed this suit in 2016. It named
the State as the sole defendant. See Docket No. 1.
parties have stipulated that the State is a public entity
that must comply with the ADA and its implementing
regulations. Trial Stipulations ¶ 1. The State
controls and operates the mental health system through the
Mississippi Department of Mental Health (DMH), which provides
services, and the Mississippi Division of Medicaid, which
pays for services for Medicaid-enrolled persons. Id.
¶ 2. Persons with SMI are “almost always”
eligible for Medicaid. Trial Tr. 1402.
United States alleges that Mississippi over-relies on state
psychiatric hospitals in violation of Olmstead.
Adults with SMI are forced into segregated hospital settings
instead of being able to stay in their communities with the
help and support of their families and local services. The
United States claims that as a result, all Mississippians
with SMI are denied the most integrated setting in which to
receive services, and are at serious risk of
case culminated in a four-week bench trial in June and July
of 2019. The parties have now submitted their
post-trial proposed findings of facts and conclusions of law.
See Docket Nos. 232-33.
practice established that the United States filed this action
pursuant to its authority to enforce Title II of the ADA, 42
U.S.C. § 12133, and under the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997a.
See United States v. Mississippi, No.
3:16-CV-622-CWR-FKB, 2019 WL 2092569, at *2-3 (S.D.Miss. May
13, 2019); see also DAI II, 675 F.3d at 162 (finding
that the United States had standing to bring suit on behalf
of thousands of individuals with SMI living in segregated
settings). The United States has complied with the necessary
statutory prerequisites. The State has not challenged that
these prerequisites have been met at or since trial.
State, however, has raised several arguments that all suggest
the same conclusion: despite the statutory authority to bring
such a suit, the United States cannot prevail in this case
because it is the sole plaintiff. Without other named
plaintiffs or a certified class of individuals, the State
says, there is no violation of the ADA. These arguments must
be addressed first, because while not expressly articulated
as such, they invoke the basic principle of Article III
standing that a plaintiff must suffer an
“injury-in-fact.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992).
the State argues that the United States has not proven that
anyone was unnecessarily hospitalized. Second, the State
argues that the United States has not proven that anyone was
denied the benefits of, or excluded from participation in,
any community-based program. Third, the State contends that
because the United States does not have named plaintiffs who
are currently institutionalized, this case is
“only” an at-risk of institutionalization case.
Docket No. 232 at 15.
first two arguments were refuted at trial. The United
States' experts provided dozens of examples of
individuals who were unnecessarily hospitalized or
hospitalized too long because they were excluded from
community-based services. Some of the persons the United
States' experts analyzed for this suit were still
hospitalized when the experts interviewed them. All of that
evidence will be discussed below. In this section, though,
the Court will discuss the third argument: whether this case
is somehow deficient for emphasizing that Mississippians
remain at risk of institutionalization and
the cases brought pursuant to Title II's integration
mandate are brought by individual plaintiffs or classes of
persons. E.g., Olmstead, 527 U.S. at 593
(reciting that plaintiffs L.C. and E.W. were persons with
disabilities who challenged their institutionalization). This
case is different. Here, the United States alleges, inter
alia, that Mississippi's system pushes thousands of
people into segregated hospital settings that could have been
avoided with community-based services. When persons with SMI
are eventually discharged, it claims, Mississippi's
ongoing lack of community-based services means they are at
serious risk of re-institutionalization.
Fifth Circuit has not reviewed a similar case, so decisions
from around the country guide this Court's determination.
Cf. Shumpert v. City of Tupelo, 905 F.3d 310, 320
(5th Cir. 2018), as revised (Sept. 25, 2018)
(“If there is no directly controlling authority, this
court may rely on decisions from other circuits to the extent
that they constitute a robust consensus of cases of
cases show that Title II protects not only those persons
currently institutionalized, but also those at serious risk
of institutionalization. See Steimel v. Wernert, 823
F.3d 902, 911-13 (7th Cir. 2016); Davis v. Shah, 821
F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709
F.3d 307, 321-22 (4th Cir. 2013); M.R. v. Dreyfus,
663 F.3d 1100, 1116 (9th Cir. 2011), amended by 697
F.3d 706 (9th Cir. 2012); Fisher, 335 F.3d at 1181;
Steward v. Abbott, 189 F.Supp.3d 620, 633 (W.D. Tex.
2016); Pitts v. Greenstein, No. 10-635-JJB-SR, 2011
WL 1897552, at *3 (M.D. La. May 18, 2011); DAI I,
653 F.Supp.2d at 187-88 (finding violation of ADA and
Rehabilitation Act where approximately 4, 300 individuals
with SMI were “residing in, or at risk of entry
into” segregated settings), vacated sub nom. DAI
II, 675 F.3d at 162 (finding that original plaintiff
lacked organizational standing but the United States could
bring such a suit). In other words, the prospective approach
taken by the United States is supported by the weight of
authorities from around the country.
State argues that these cases have differing fact patterns.
The argument is unpersuasive because these cases all
evaluated the key premise at issue here-whether at risk of
institutionalization claims are valid.
Pashby, for example, the Fourth Circuit rejected the
idea that an Olmstead claim is limited to instances
of “actual institutionalization.” 709 F.3d at
321. It instead agreed with the plaintiffs that
Olmstead protects those facing “risk of
institutionalization.” Id. at 322. The Tenth
Circuit added that a contrary conclusion makes little sense,
as the ADA's “protections would be meaningless if
plaintiffs were required to segregate themselves by entering
an institution before they could challenge an allegedly
discriminatory law or policy that threatens to force them
into segregated isolation.” Fisher, 335 F.3d
at 1181; see also Steimel, 823 F.3d at 912.
“Unsurprisingly, . . . courts of appeals applying the
disability discrimination claim recognized in
Olmstead have consistently held that the risk of
institutionalization can support a valid claim under the
integration mandate.” Davis, 821 F.3d at 263
with this principle, Mississippi pivots, and says those cases
are distinguishable because those defendants were making
“policy changes” to take away services, whereas
here, Mississippi is simply moving slowly on
deinstitutionalization. But that is not a complete statement
of the facts or the law. The evidence showed that Mississippi
is making policy changes that both decrease and
increase institutionalization. For example, the State is
increasing hospital beds at some of its facilities. The law,
meanwhile, indicates that the ADA and Olmstead
protect persons trapped in a snail's-pace
is unique among civil rights laws. It is “a
‘broad mandate' of ‘comprehensive
character' and ‘sweeping purpose' intended
‘to eliminate discrimination against disabled
individuals, and to integrate them into the economic and
social mainstream of American life.'”
Frame, 657 F.3d at 223 (citations omitted). Somewhat
unusually, the ADA “impose[s] upon public entities
an affirmative obligation to make reasonable
accommodations for disabled individuals. Where a defendant
fails to meet this affirmative obligation, the cause of that
failure is irrelevant.” Bennett-Nelson v.
Louisiana Bd. of Regents, 431 F.3d 448, 454-55
(5th Cir. 2005) (emphasis added and citations omitted).
affirmative obligation extends to deinstitutionalization
cases. Olmstead explicitly holds that “States
are required to provide community-based
treatment” if three elements are met. 527 U.S. at 607
(emphasis added). None of those elements turn on whether the
State is eliminating services or failing to provide services.
The rate-of-change question is instead folded into element
three of the standard; whether community placement “can
be reasonably accommodated.” Id.
law also indicates that states dragging their feet on
deinstitutionalization can be held accountable under
Frederick L., the Third Circuit was faced with a
situation with similarities to our own. Both parties sought
deinstitutionalization and citizens' “integration
into community-based healthcare programs.”
Frederick L. v. Dep't of Pub. Welfare of Pa.
(Frederick L. II), 422 F.3d 151, 154 (3d Cir. 2005).
They disputed only the timeline of implementation (or lack
thereof). The appellate court found that although the
Commonwealth of Pennsylvania “proffers general
assurances and good faith intentions to effectuate
deinstitutionalization, ” that was not enough to
satisfy the ADA.
General assurances and good-faith intentions neither meet the
federal laws nor a patient's expectations. Their
implementation may change with each administration . . .,
regardless of how genuine; they are simply insufficient
guarantors in light of the hardship daily inflicted upon
patients through unnecessary and indefinite
Id. at 158-59. The Third Circuit concluded that
under Olmstead, states must provide more than
“a vague assurance” of “future
deinstitutionalization”; that “verifiable
benchmarks or timelines” are “necessary elements
of an acceptable plan”; and that any plan must
“demonstrate a commitment to community placement in a
manner for which [the state government] can be held
accountable by the courts.” Id. at 155- 56.
This Court agrees, and will therefore consider the
State's arguments regarding the timing of
deinstitutionalization later in the Olmstead
analysis, rather than as a bar to the entire action.
all of these authorities, the Court cannot sustain the
State's preliminary legal arguments. The Court will now
turn to the evidence.
Mental Health System
mental health system looks like a broad continuum of
care-with community services on one end and the state
hospitals on the other. On one end, the State is divided into
regions, each covered by a community mental health center
that provides a range of services. On the other end, a
handful of state hospitals are used to institutionalize
patients when necessary.
Robert Drake, one of the United States' experts,
testified that the community-based system described in
Mississippi's manuals “is well written.”
Trial Tr. 105. In practice, however, the continuum of care
morphs from a line into a circle. Mississippians with SMI are
faced with a recurring cycle of hospitalizations, without
adequate community-based services to stop the next
commitment. This process of “cycling admissions”
is “the hallmark of a failed system.” Trial Tr.
State offers community-based mental health services primarily
through fourteen regional community mental health centers
(CMHCs). DMH is responsible for certifying, monitoring, and
assisting the CMHCs.” Trial Stipulations ¶ 5. DMH
promulgates standards for the CMHCs and provides them with
grant funding, but the management of each CMHC is left to a
board appointed by the county supervisors within the
catchment area covered by the CMHC. Id. ¶ 7;
Trial Tr. 1579.
services” refers to a bundle of evidence-based
practices. If these services are provided in a county, they
are provided through the regional CMHC. Each kind of service
is described in more detail below.
. Programs of Assertive Community
Treatment (PACT): PACT is the most intensive
community-based service available in Mississippi. It is for
individuals “who have the most severe and persistent
mental illnesses, have severe symptoms and impairments, and
have not benefited from traditional outpatient
programs.” JX 60 at 215; see Trial
Stipulations ¶¶ 189-90. PACT teams include some
combination of psychiatric nurse practitioners,
psychiatrists, registered nurses, community support
specialists, peer support specialists, employment and housing
specialists, therapists, and program coordinators.
See Trial Tr. 529 and 2194. Currently, PACT services
are offered in Mississippi through eight PACT teams, which
together cover 14 of Mississippi's 82 counties.
See PX 413; Trial Stipulations ¶ 195.
. Mobile Crisis Response Services:
“All fourteen CMHC regions established Mobile Crisis
Response Teams in 2014. Mobile crisis response services are
required by DMH regulation to be available 24 hours a day, 7
days a week, 365 days a year.” Trial Stipulations
. Crisis Stabilization Units
(CSUs): “CSUs provide psychiatric supervision,
nursing, therapy, and psychotherapy to individuals
experiencing psychiatric crises, and are designed to prevent
civil commitment and/or longer-term inpatient hospitalization
by addressing acute symptoms, distress, and further
decompensation.” Id. ¶ 212. There are
nine CSUs in Mississippi. They are located in Batesville,
Brookhaven, Cleveland, Corinth, Grenada, Gulfport, Laurel,
Newton, and Jackson. Id. ¶ 222.9 9 The ninth
CSU was added in Hinds County, the State's most populous
county, in the spring of 2019, past the fact cut-off date
agreed to by the parties. See Trial Tr. 2202.
Nevertheless, this is relevant for understanding the complete
range of services currently provided by DMH.
. Community Support Services:
Community support services are similar to PACT services, but
are less intensive. They allow healthcare professionals to
provide in-home services like medication management and
referrals to other service providers. Medicaid will reimburse
up to 100 hours of community support services per person per
year. See Trial Tr. 40 and 1345.
. Peer Support Services:
“Peer Supports are provided in Mississippi by Certified
Peer Support Specialists (CPSS), individuals or family
members of individuals who have received mental health
services and have received training and certification from
the State. CPSS may work in State Hospitals, as part of PACT
or Mobile Crisis Response Teams, for CMHCs, or for other
providers and serve as a resource for individuals with mental
illness. Peer specialists engage in person-centered
activities with a rehabilitation and resiliency/recovery
focus. These activities allow consumers of mental health
services and their family members the opportunity to build
skills for coping with and managing psychiatric symptoms and
challenges associated with various disabilities while
directing their own recovery.” Trial Stipulations
. Supported Employment:
“Supported Employment for SMI assists individuals with
severe and persistent mental illness in obtaining and
maintaining competitive employment.” Id.
¶ 227. “In FY17 116 individuals with SMI received
supported employment.” Id. ¶ 232.
. Permanent Supported Housing:
“According to SAMHSA,  Permanent Supported Housing is
an evidence-based practice that provides an integrated,
community-based alternative to hospitals, nursing facilities,
and other segregated settings. It includes housing where
tenants have a private and secure place to make their home,
just like other members of the community, and the mental
health support services necessary to maintain the
housing.” Id. ¶ 235. In Mississippi,
supported housing services are delivered through a program
known as CHOICE. “CHOICE recipients receive mental
health services from the local CMHC or other providers and
are eligible for a rental subsidy administ[ered] through
MHC.” Id. ¶ 237. “In FY17 205
individuals were served through CHOICE.” Id.
evidence established that the descriptions of the services
provided by CMHCs is adequate. The problem is that the
descriptions do not match the reality of service delivery, in
terms of what is actually provided and where it is provided.
Some of those realities are presented below.
PACT is unavailable and under-enrolled.
following map provides an understanding of the regional
catchment areas that each CMHC covers. It shows that PACT
services do not exist in 68 of Mississippi's 82 counties.
Counties with PACT Teams as of June
the most intensive community-based service. It targets
individuals who need the most assistance staying out of the
hospital. The prime candidate for PACT is someone who has had
multiple hospitalizations, such as the 743 Mississippians
hospitalized more than once between 2015 and 2017.
See PX 405 at 28. The United States refers to
this group as the “heavy utilizers” of the mental
health system. Trial Tr. 2468.
September 2018, however, only 384 people in the state were
receiving PACT services. See JX 50 at 8. The problem
is obvious. If there are more than 700 heavy utilizers who
have been hospitalized multiple times, but fewer than 400
persons receive PACT services, the penetration rate of PACT
services is low.
one obvious reason for the under-enrollment of heavy
utilizers is geographical. The below map shows that many of
Mississippi's most-hospitalized persons live in areas
where PACT services are not available.
Addresses of the top 30% of Hospital
those 14 counties where PACT exists, there is another
problem. Testimony revealed that existing PACT teams are not
operating at full capacity. A DMH Bureau Director attributed
the shortfall to "staff issues" and the fact that
some patients “choose not to have that level of
intervention in their life.” Trial Tr. 1587-88.
first explanation is understandable. The second is less
persuasive. Other states' experiences show that patients
do in fact choose to have intensive community-based services
in their lives. We know this because other states have
significantly higher PACT penetration rates. One of the
State's experts testified that if Mississippi's PACT
services had the nation's average penetration rate, a
total of 1, 329 Mississippians with SMI would be receiving
PACT services. Trial Tr. 1539. That is nearly 1, 000 persons
more than are being served today.
Mobile Crisis Services are illusory.
availability does not always translate into true
accessibility. The Court heard from Sheriff Travis Patten,
the top law enforcement official in Adams County,
Mississippi. He testified that although his county is covered
by the CMHC for Region 11, when people call the mobile crisis
line, the Adams County Sheriff's Department is dispatched
to respond to the call. That is in large part because the
mobile crisis team is based in McComb, over an hour away. His
department never sees the mobile crisis team. See
Trial Tr. 914-15.
Worsham, the certified peer support specialist, has called
the mobile crisis line in Gulfport “dozens of
times.” Trial Tr. 335. They came only once. Trial Tr.
336. Every other time, they told her to take herself or her
client to the hospital or call the police. Trial Tr. 336-37.
no surprise then that the mobile crisis lines covering Adams
County and Gulfport are utilized less often than others in
the state. The below map shows the utilization of this
service by region: