A SETTLEMENT HAS BEEN PROPOSED THAT MAY AFFECT THE RIGHTS OF PERSONS IN THE STATE OF LOUISIANA WHO ARE UNDER THE AGE OF 21, RECEIVE MEDICAID WAIVERS ON THE BASIS OF THEIR DEVLOPMENTAL DISABILITIES, AND ARE, OR WILL BE, AUTHORIZED FOR IN-HOME NURSING SERVICES.

A settlement agreement has been proposed in this case, which may affect the rights of Louisiana residents who are under the age of 21, receive Medicaid Waivers on the basis of their developmental disabilities, and are, or will be, authorized for in-home nursing services. The individuals in this limited group of children are referred to as “Class Members,” and the Plaintiffs who filed the lawsuit represent the interests of the class in this case.

This Notice explains the lawsuit and the key terms of the settlement agreement, tells you how to obtain more information, explains how to determine whether an individual is a Class Member in the lawsuit, and explains how Class Members (and/or their legal representatives) can tell the Court whether they disagree with the settlement agreement or some part of it. The settlement agreement described in this Notice is subject to Court approval, and thus has not yet been made final. The Court has scheduled a hearing to determine the fairness, adequacy and reasonableness of the settlement agreement and to consider any objections Class Members may have to the agreement.  

1.What is this lawsuit about?

The Court in charge of the lawsuit is the United States District Court for the Middle District of Louisiana, and the case is known as A.J. v. Gee, Case No. 19-324. The people who sued are called the Plaintiffs, and the individual and entity they sued are called the Defendants. Plaintiffs filed this lawsuit on May 22, 2019 seeking to compel the State to comply with the federal Medicaid Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. The named Plaintiffs are children who receive developmental disability waiver services who are also authorized for Medicaid in-home nursing services called Extended Home Health and Intermittent Nursing. The named Defendant is: Rebekah Gee, Secretary of the Louisiana Department of Health and the Louisiana Department of Health. Defendants are responsible for administering the State of Louisiana’s Medicaid Program. The lawsuit seeks to compel the State of Louisiana (through the Defendants) to comply with federal laws.

2.What is a settlement agreement and why is it being proposed here?

The Court in this case did not decide in favor of either Plaintiffs or Defendants. There was no trial or court ruling for one party or the other in the case. Instead, the Plaintiffs and Defendants negotiated a settlement of this dispute that is set out in the settlement agreement. Plaintiffs and Defendants have asked the Court to approve the settlement agreement. By settling this lawsuit, the parties avoid having to face the uncertainty of the outcome of a trial as well as the substantial cost of a trial. In addition, children who need Medicaid in-home nursing services will get relief from Defendant much sooner than if they had to wait for the resolution of the lawsuit through a trial and expected appeals. That process could take many years. The Plaintiffs who filed the lawsuit and their attorneys think the settlement agreement is the best outcome for the people who are Class Members.

3.Who is a Class Member?

The Court has certified the lawsuit as a class action and decided that everyone who fits this description is a Class Member: all current and future Medicaid recipients under the age of twenty-one (21) in Louisiana who are certified in the Children’s Choice Waiver, the New Opportunities Waiver, the Supports Waiver, or the Residential Options Waiver who are also prior authorized to receive extended home health services or intermittent nursing services which do not require prior authorization but are not receiving some or all of the hours of extended home health services or intermittent nursing services as authorized by the Defendants.

4.Will Class Members receive money?

No. There is no money being awarded to Plaintiffs or Class Members as part of the settlement.

5.What does the settlement agreement provide?

The settlement agreement in this case, if approved by the Court, would provide certain rights and benefits to eligible Class Members as defined above. If the settlement agreement is not approved, it will be withdrawn and the lawsuit will continue. A copy of the entire settlement agreement is available on the following websites: http://www.ldh.la.gov  and http://www.ldh.la.gov/Medicaid  and www.advocacyla.org. The Parties believe that the settlement agreement fairly, reasonably, and adequately affords relief to Class Members. The essence of the relief sought by Plaintiffs is for Defendants to revise its processes for coverage of in-home nursing in a manner that allows for Class Members to receive staffing for the amount, duration and scope of inhome nursing services that Defendants have prior authorized. The relief afforded under the settlement agreement addresses and substantially achieves that goal through a graduated process tailored towards identifying the reasons that a Class Member is missing in-home nursing hours and then remedying the deficiencies identified. Specifically, the settlement agreement requires that:

  1. Defendants shall establish a Crisis Response Team whose primary responsibility shall be arranging for in-home nursing services for Class Members when such services are unavailable through existing Medicaid home health agencies within their administrative regions. The Crisis Response Team shall have the responsibility to make all reasonable efforts to ensure in-home nursing services are able to be provided to the Class Member within 10 business days of a referral for any Class Member, who after two weeks of effort to attain services, are unable to receive 90% of prior authorized in-home nursing services. Class Members at risk of institutionalization may be referred to the Crisis Response Team without having to seek in-home nursing services for two weeks first.
  2. Defendants will publish contact information for this team on LDH’s website and require support coordination agencies to provide the information to the Class Members they serve. The Crisis Response Team operates in addition to support coordination. The contact information for the Crisis Response Team will also be added to the notice denying Class Members extended home health services and being referred to intermittent nursing services. Class Members being denied extended home health services and referred to intermittent nursing services in certain regions will be referred to the Crisis Response Team.
  3. Defendants shall publish and implement enhanced reimbursement rates for the following situations: two Class Members being cared for simultaneously; children in EHH with high medical needs; overnight shifts for EHH; weekend shifts for EHH; holiday shifts for EHH; and EHH services in rural areas. Defendants shall also study an enhanced rate for overtime hours and seek budgetary authority to implement an overtime rate, should that rate be determined necessary.
  4. Defendants shall enact changes to existing policies and procedures to promote more effective coordination between Class Members, case management providers, home health providers, and Defendants. Defendants will also conduct mandatory training for support coordinators that serve Class Members regarding the Crisis Response Team.
  5. Defendants shall initiate a study to determine the correlation between the current reimbursement rates for in-home nursing services and the unavailability of these services for Class Members. Defendants shall to seek authority to implement any rate increases recommended by the study. Defendants will also hold bi-annual meetings with representatives from at least one Medicaid participating home health agency per administrative region to identify and resolve challenges with providing intermittent nursing services.
  6. Defendants will complete a study of the impact of the licensure of additional home health agencies on the availability of in-home nursing services if, after the rate study completes and any rate increase are implemented, there remains a concern with the ability of Class Members to receive at least 85% of their in-home nursing services on an ongoing basis. If Defendants’ study demonstrates that additional home health agencies will increase the availability of in-home nursing services based on modification to licensure, Defendants shall take necessary steps to remove barriers to the licensure of new in-home nursing provider agencies.
  7. Defendants shall develop and implement a plan to grow the total number of qualified individuals in the job pool for the provision of Medicaid-covered in-home nursing services in Louisiana.
  8. Defendants shall engage in on-going monitoring of the availability of inhome nursing services. This monitoring will be provided to Plaintiffs’counsel for review.
  9. Plaintiffs’ counsel shall be entitled to a total of $94,500 in fees for the hours and costs entered into this case. Plaintiffs shall be entitled to further fees in the event that enforcement of the Settlement Agreement becomes necessary.

6.How can you tell the Court if you agree or disagree with all of part of the settlement agreement?

All Class Members have the right to state any objection they may have to the settlement agreement and to give reasons why they believe the Court should not approve it. All Class Members have the right to state their approval of the settlement agreement, although they are under no obligation to do so. The Court and the Parties will consider those opinions submitted by Class Members in the following manner:

  • the statement must include the name and number of the case (J. v. Gee, Case No.19-324)
  • The statement must include a statement of the reasons why the Court should or should not approve the settlement agreement;
  • The statement must be no longer than 15 pages in length;
  • The statement must include the name, address, telephone number, and signature of the individual submitting it; and
  • The statement must be submitted by U.S. Mail and postmarked no later than February 18, 2020, to:

    Amitai Heller Advocacy Center
    8325 Oak Street
    New Orleans, LA 70118

Attorney Amitai Heller, co-counsel for the Class, will provide the Court and other counsel for the Plaintiffs and Defendants with the statements that he receives and that Class Members want presented to the Court. Please note that it is not sufficient to simply state that you object. Objections must state the reasons why the settlement agreement should not be approved.

7. When and where will the Court decide whether to accept the settlement agreement?

The Court will hold a fairness hearing to consider whether to approve the proposed settlement agreement on March 19, 2020 at 2:00 p.m. before the Honorable Brian Jackson, United States District Judge, in the Russell B. Long Federal Building, 777 Florida Street, Baton Rouge, Louisiana 70801. At this hearing the Court will consider whether the settlement agreement is fair, reasonable, and adequate. The Court will consider any objections made according to the procedure described above.

8. Do you have to come to the fairness hearing?

All Class Members are welcome to attend the Fairness Hearing if they choose to do so, but no one is required to attend the Fairness Hearing. Plaintiffs' and Defendants’ lawyers will be available to answer questions Judge Jackson may have. If you submit a statement or objection in accordance with the procedures described in paragraph 6 above, you are not required to come to Court to talk about it. As long as you mailed your written statement or objection in accordance with the procedures described in paragraph 7 above, the Court will consider it.

9.Who can speak at the fairness hearing?  

Amitai Heller Advocacy Center
8325 Oak Street
New Orleans, LA 70118

Be sure to include your name, address, telephone number, and your signature on your "Notice of Intention to Appear." If you file a statement or objection and also want to ask for permission to speak at the Fairness Hearing, you can include the "Notice of Intention to Appear" in the same document as the statement/objection that is sent to Mr. Heller. Mr. Heller will provide copies of these "Notices of Intention to Appear" to the Court and to other counsel for the parties.

10. Who are the Class Members’ lawyers in this case?

The Court ordered that the following attorneys represent the Class Members in this suit. These lawyers are called “class counsel.” The attorneys are:

Amitai Heller (LBN 36495, T.A.)
Ronald Lospennato, (LBN 32191)
Advocacy Center
8325 Oak Street
New Orleans, Louisiana 70118
(504) 522-2337, ext. 116
aheller@advocacyla.org 
rlospennato@advocacyla.org 

Jane Perkins
Elizabeth Edwards
National Health Law Program
200 N. Greensboro St., Ste. D-13
Carrboro, NC 27510
(919) 968-6308
perkins@healthlaw.org 
edwards@healthlaw.org  

You may ask the Court for permission to speak at the Fairness Hearing. The Judge will decide whether you are permitted to do so. To request permission to speak at the Fairness Hearing, you must send a request to Class Counsel as directed below. Class Counsel will provide the necessary documents to the Court. The request must be entitled: "Notice of Intention to Appear in A.J. v. Gee, Case No. 19-234”.  

You must send one copy of your "Notice of Intention to Appear" to the attorney listed below via U.S. mail, postmarked no later than February 18, 2020:

Class Members will not be charged for these lawyers’ fees or expenses.

11. How can you get more information about this settlement agreement?

A copy of the entire settlement agreement is available at the following websites: http://www.advocacyla.org  and http://www.ldh.la.gov  and www.ldh.la.gov/Medicaid. If you would have any questions for class counsel or would like a physical copy of the settlement agreement, please contact Amitai Heller at the contact information provided above.

Click here to read the Proposed Order.

Click here to read the Settlement Agreement.