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Chisholm v. Gee

United States District Court, E.D. Louisiana

August 30, 2017


         SECTION: "J"(5)



         Before the Court is a Motion to Vacate the 2014 Stipulated Order (Rec. Doc. 420) filed by Dr. Rebekah Gee, in her official capacity as the Secretary of the Louisiana Department of Health (“LDH”). Plaintiffs filed an opposition to LDH's motion (Rec. Doc. 424), LDH filed a reply (Rec. Doc. 432), and Plaintiffs filed a supplemental memorandum (Rec. Doc. 437). On July 19, 2017, the Court heard oral argument on the motion and took the matter under advisement. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.


         This litigation dates back to 1997, when Plaintiffs first alleged that the Louisiana Department of Health and Hospitals (“LDHH”) (now called the Louisiana Department of Health (“LDH” or “the Department”)) violated federal Medicaid law by not providing people with Autism Spectrum Disorder (“ASD”) sufficient access to behavioral and psychological services. Plaintiffs were certified as a class of “all current and future recipients of Medicaid under the age of twenty-one who are now and will in the future be placed on the Mental Retardation/Developmental Disabilities (“MR/DD”) Waiver waiting list.” (Rec. Doc. 118 at 1.) Following a bench trial, the Court issued Findings of Fact and Conclusions of Law on February 2, 2001 determining that LDHH violated federal law by failing to make behavioral and psychological services available. Id. at 21-22. The Court ordered the parties to confer and jointly submit a proposed remedy for the violations. Id. at 23.

         The parties agreed on a proposed remedy which the Court entered as a remedial order on June 27, 2001 (“2001 Remedial Order”). (Rec. Doc. 124.) Nearly a year later, on June 14, 2002, the Court found LDHH to be in contempt of the 2001 Remedial Order and entered an Order to that effect (“2002 Contempt Order”). The 2002 Contempt Order was intended to improve compliance by LDHH and compensate class members for the failure to comply. (Rec. Doc. 140 at 3-4.) It stated that the “remedy may . . . be ended by agreement of the parties, approved by the Court, or by further Order of the Court.” Id. at 4. Additionally, the 2002 Contempt Order provided that “[e]ither party may by motion seek modification of the alternative remedy ordered herein.” Id.

         Nearly a decade later, Plaintiffs requested that the Court modify the 2002 Contempt Order to adapt to changes in treatment of ASD. (See Rec. Doc. 364). The treatment of children with ASD had evolved significantly in the decade since 2001 and new therapies had become available. In particular, a therapy called Applied Behavioral Analysis (“ABA”) developed and proved to be successful in improving the intellectual functioning of people with ASD. A new type of professional also developed; specialists called Board Certified Behavior Analysts (“BCBAs”) became prevalent and often provided ABA services. On February 27, 2013, Plaintiffs moved the Court to modify the 2002 Contempt Order by requiring LDHH to enroll BCBAs as Medicaid providers. The Department opposed this request. On May 21, 2013, after hearing oral argument on the motion, the Court modified the 2002 Contempt Order to require LDHH to enroll BCBAs in Louisiana Medicaid as independent providers (“2013 Contempt Order”).

         As LDHH began implementing the 2013 Contempt Order, the parties entered into negotiations to replace some of the obsolete obligations left from the previous three orders and to consolidate the Department's responsibilities. (See Rec. Doc. 404-1 at 3-4.) The parties jointly proposed a stipulated order (“2014 Stipulated Order”), which the Court approved and entered on April 1, 2014. (Rec. Doc. 408.) The 2014 Stipulated Order vacated the 2002 and 2013 Contempt Orders and modified the 2001 Remedial Order “such that its terms are superseded by and replaced with the terms in the revised remedial order submitted by the parties.” (Rec. Doc. 407.)

         The 2014 Stipulated Order provides that after thirty months from its entry, “[LDH] may move to vacate this Order on the grounds that [LDH] has achieved and maintained compliance for a sufficient period of time to warrant relief under Federal Rule of Civil Procedure 60(b).” (Rec. Doc. 408 at 14.) The thirty month anniversary of the 2014 Stipulated Order was October 1, 2016. LDH now moves to vacate the 2014 Stipulated Order and Plaintiffs oppose this motion.


         LDH filed this motion pursuant to Federal Rule of Civil Procedure 60(b)(5) (“Rule 60(b)(5)”). Rule 60(b)(5) permits the Court to “relieve a party or its legal representative from a final judgment, order, or proceeding” when the movant has established that one of three independent grounds has been met: (1) “the judgment has been satisfied, released, or discharged;” (2) “it is based on an earlier judgment that has been reversed or vacated;” or (3) “applying it prospectively is no longer equitable.” Fed.R.Civ.P. 60(b)(5); See Frew v. Janek, 780 F.3d 320, 327 (5th Cir. 2015). Here, LDH requests relief based upon the first ground for having satisfied the 2014 Stipulated Order or based upon the third ground because it argues that applying the 2014 Stipulated Order prospectively would no longer be equitable. However, the briefing for this motion focuses primarily upon whether LDH has satisfied its obligations under the 2014 Stipulated Order and not upon whether prospective application would be equitable.

         Motions for termination of consent decrees are rarely based upon the state agency having satisfied the terms of the order. See Frew, 780 F.3d at 327 (noting that Rule 60(b)(5) motions based upon the first ground of Rule 60(b)(5) are “almost never applied to consent decrees”). As the Fifth Circuit has acknowledged, there is “very little applicable precedent interpreting this clause” in the context of consent decrees that involve institutional reform. Id. However, the court in Frew v. Janeck applied general principles of contract interpretation to a consent decree to determine whether the judgment had been satisfied. See id. at 327-28.

         More often, movants bring Rule 60(b)(5) motions pursuant to the third ground, that prospective application is no longer equitable. The standard for modification of consent decrees based on that ground is a “flexible one.” Frazar v. Ladd, 457 F.3d 432, 436 (5th Cir. 2006) (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 393 (1992)). The moving party “bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Id. The movant can meet this burden by demonstrating that a “significant change either in factual conditions or in law” has occurred. Id. at 436. The court then determines if the ‚Äúproposed modification is suitably ...

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