Rosie D.
Reforming the Mental Health System in Massachusetts

News Stories & Feature Article

Periodically, news of important implementation activities will be described, together with a short feature article on a topic relevant to the reform of the mental health system in Massachusetts.

Court Finds Non-Compliance with the Rosie D. Judgment and Federal Medicaid Law

In a strongly-worded decision, Judge Michael Ponsor denied the Commonwealth’s Motion for Substantial Compliance, refusing to terminate active court oversight and monitoring of the Massachusetts’ home-based service system created under Rosie D. v. Baker.

After extensive briefing and oral argument in 2018, the Court concluded that defendants’ efforts to counter plaintiffs’ evidence of noncompliance had “no traction.” Instead, it held that persistent delays in timely access to remedial services constituted a continuing violation of federal Medicaid law and the Court’s 2007 Judgment. The Court described a “protracted failure to improve timely access to home-based services,” like Intensive Care Coordination (ICC) and In-Home Therapy (IHT), and admonished the State for having no concrete plan or specific actions designed to “alleviate this glaring failure in compliance.”

The Court discounted the defendants’ argument that the Judgement did not require them to deliver remedial services with “reasonable promptness,” finding that this theory “flies in the face of the explicit liability finding, the manifest import of the remedial order, and, most importantly, the clear language of the Medicaid statute itself and the law’s regulations.” The Court analogized this failure to delayed medical care, noting that “[i]f a Medicaid-eligible child had appendicitis, no one would suggest that a “reasonably prompt” response would be an appointment within two weeks of onset.”

Ultimately, the Court held that “[d]efendants have so far failed to provide these clinical services to a large portion of the Plaintiff class with anything approaching “reasonable promptness.” Noting that both the final remedial Order, and the Medicaid access standard for ICC, were proposed by the defendants, the Court sent a strong message that the Commonwealth should be held accountable to its own standards. Although the defendants’ proffered that “external factors” like difficulties in hiring, training, and retaining staff are to blame for delays in access, the Court called these the “bread-and-butter challenges” agencies typically plan for, noting that “[i]t would be an abdication of the court’s power to permit Defendants to flout federal law with such a flimsy justification.”

In addition to timely access to services, the Court noted that “… serious concerns exist, with substantial objective verification, regarding the quality of some of the care coordination being provided,” including the extent to which youth in IHT or outpatient therapy (OP) are receiving care coordination consistent with the Judgment. For instance, the Court observed that it had received “no assurance that the OP service component is actually functioning as a hub to provide care coordination.”

In its opinion, the Court recognizes that delays in access to services can have profound, negative consequences for class members and their families, including “violent physical outbursts, summoning of the police, removal from the home, and traumatizing unnecessary hospitalizations.” Noting that the central purpose of remedial services is preserve children’s tenure in their homes and communities, it observed that “placement [in] inappropriate clinical settings, such as emergency rooms or longer-term in-patient facilities due to the absence of responsive home-based services, can be extremely damaging to these fragile children and was a primary shortcoming of the pre-2006 system that the remedial order aimed to rectify.”

The Court’s decision provides a detailed history of the implementation efforts under the Judgement, including the defendants’ concession in 2012 that additional work was required to come into full compliance with the Judgment. At that time, the Court proposed a shift towards disengagement planning – noting that the parties’ decision to embrace this approach constituted an “obvious voluntary modification of the remedial order’s oversight and monitoring provision.”

While defendants were ultimately unable to achieve the specific joint disengagement criteria and numerical targets intended to serve as a “road map” for ending Court oversight, the opinion makes clear that the Court’s decision rests not on the failure to achieve disengagement criteria, but the failure to comply with the 2007 Judgment, and to remedy violations of federal law identified in its 2006 liability decision. Given these “glaring” failures, the Court concluded that it had clear authority to enforce its own orders, and need not address whether the defendants must comply with the negotiated disengagement measures in order to achieve compliance.

The Court concludes by stating that “[s]omething effective must be done, some credible plan adopted, something other than vague excuses must be offered, before court monitoring and oversight can be terminated.’’ Until then, the court “retains the power and the responsibility to continue its supervision and monitoring, with the essential assistance of the Court Monitor.”

Feature Article 

The Massachusetts Practice Review:
Measuring Compliance with Joint Disengagement Criteria

The Massachusetts Practice Review (MPR) is the State’s primary mechanism for evaluating the quality and effectiveness of home-based services at the individual client level.  These reviews are focused on two remedial services central to the Court’s 2007 Judgment: Intensive Care Coordination (ICC) and In-Home Therapy (IHT).  Given its unique focus on the quality of individual service delivery, the MPR has an important role to play in measuring overall compliance with the Rosie D. remedial order.

As part of the MPR process, a random sample of youth and families is drawn from across the state, based on their participation in either ICC or IHT.  Once consent is obtained, trained reviewers examine relevant medical records and conduct interviews with multiple informants, including the youth, the caregiver and the IHT or ICC provider. The MPR examines service system performance across multiple domains, including youth and family progress.  Reviewers rate the quality of provider practice using a scale from 1 to 5, with 1 being adverse and 5 being exemplary. Individual scores are totaled together to determine what percentage of clinical practice experienced by youth and families in the review is adverse, poor, fair, good or exemplary.

Several compliance measures within the parties’ Joint Disengagement Criteria are based on results from the MPR, including the adequacy of care coordination, clinical assessments, service delivery, treatment planning, team formation and team participation.  In order to satisfy the annual Disengagement Measures, there must be a ten percent increase in the number of services considered “good or better” by the MPR.  This formula for incremental change uses baseline data from ICC and IHT system performance gathered in 2016.  Additionally, the Joint Disengagement Criteria require that no youth should experience “adverse practice” (a rating of 1 on the MPR scale) except in rare circumstances. 

A new set of MPR data on ICC practice, gathered during the fall of 2017, was released in mid-January, 2018. This new data has been designated as the measure of compliance for calendar year 2017 of the Disengagement Criteria. These scores show mixed results in the delivery of ICC.  Relative areas of strength (accessibility of services in the community, service responsiveness, cultural competence and youth/family engagement) are consistent with prior reviews. However, concerns remains regarding the quality of clinical assessments, as well as the effectiveness of care coordination and transition planning.

Data from the fall 2017 ICC review show practice exceeded the Joint Disengagement Criteria’s incremental progress requirements in two areas: team formation and team participation. However, ICC practice scores failed to meet the remaining 2017 Disengagement measures.  Only 45% of ICC practice scored good or better in service planning, falling 3% points short of the relevant disengagement measure. MPR results in other disengagement categories ranged from 5 to 10 percentage points below established disengagement standards.  The largest deficit was in the area of care coordination, where only 55% of practice was rated good or better.  Only 39% of ICC clinical assessments were rated good or better, 8% below the 2017 compliance measure. Across all MPR domains, there were seven findings of adverse practice.  Overall youth progress remains disappointing - with only 27% of those reviewed experiencing good or better progress as a result of services.

The FY2017 IHT practice review (the agreed upon measure for IHT compliance in calendar year 2017) met incremental disengagement measures for team formation, team participation and care coordination. However, it failed to meet benchmarks for assessment, service delivery, and service planning.

The MPR concluded that 42% of youth reviewed received care coordination that was rated good or better, a 13% improvement over FY 2016 MPR results.  Clinical assessments also improved over 2016. Practice in this area was rated good or better 36% of the time, but missed the 2017 disengagement measure by 3 points. Practice also improved slightly in the area of service delivery, but not enough to meet established disengagement benchmarks. Service planning scores were down 2% points from 2016, at 36%. Across all IHT categories, there were fifteen findings of adverse practice, six of which occurred in the area of care coordination. MPR progress ratings showed 36% of youth making good or better progress.

As the Joint Disengagement Criteria move into their second year, there is some measurable progress in certain MPR areas. However, more work needs to be done to ensure that youth in ICC and IHT have access to clinically appropriate assessments, treatment planning, service delivery, and care coordination.  

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