Memorandum of Agreement Between the U.S. and the State of Mississippi
Memorandum of Agreement
the United States
the State of Mississippi
TABLE OF CONTENTS
III. CARE REQUIRED
BY THE CONSTITUTION AND FEDERAL STATUTES
IV. SUBSTANTIVE REMEDIAL MEASURES
A. MENTAL HEALTH CARE AND REHABILITATIVE SERVICES
B. SPECIAL EDUCATION
V. COMPLIANCE AND QUALITY ASSURANCE
VI. MONITORING AND ENFORCEMENT
VII. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
VIII. IMPLEMENTATION AND TERMINATION
(A) This Memorandum
of Agreement("MOA") resolves litigation
concerning the mental health, rehabilitation, education,
and special education claims in United States v. Mississippi,
Civ. 3:03-cv-1354WSu (S.D. Miss.). A separate settlement
agreement between the parties, that the parties will seek
to have the Court enter as a Consent Decree, addresses the
protection from harm and medical care claims in that same
case. This litigation concerns conditions of confinement
at the Oakley Training School ("Oakley") in Raymond,
Mississippi and the Columbia Training School ("Columbia")
in Columbia, Mississippi, and was brought pursuant to the
Violent Crime Control and Law Enforcement Act of 1994,
42 U.S.C. § 14141 ("Section 14141").
(B) In order to resolve
the mental health, rehabilitation, education, and
special education claims in this litigation, the parties
have entered into this MOA, which, if complied with by
the State within the time frames specified below, will
result in the dismissal of these claims from this lawsuit.
(C) The terms of
this MOA shall apply to Oakley and Columbia and to
any other residential secure care facility operated by
or under contract with the Division of Youth Services to
which the State may transfer youth from Oakley or Columbia
during the life of this MOA.
(D) The State of Mississippi enters into this
MOA because it is firmly committed to providing legally
adequate conditions at Oakley and Columbia, by instituting
the remedial measures required by this MOA.
(E) This MOA does
not constitute an admission of liability by the State.
(F) The Court has jurisdiction over this action pursuant
to 28 U.S.C. § 1331, 28 U.S.C. § 1345, and 42 U.S.C. § 14141.
Venue is proper in this district pursuant to 28 U.S.C.
§ 1391 (b).
(G) Defendants in this action are the State of Mississippi,
and the Mississippi Department of Human Services,
and their successors, contractors and agents. The State
of Mississippi shall ensure that all State agencies take
any actions necessary to comply with the provisions of
(H) This MOA is not intended to have any preclusive effect
except between the parties. Should the issue of
the preclusive effect of this MOA be raised in any proceeding
other than this civil action, the parties agree to
certify that this MOA was intended to have no such preclusive
(I) This MOA and the Consent Decree shall not be used
against the State in any proceeding other than a proceeding
between the United States and the State of Mississippi.
in this MOA or the Consent Decree shall prevent the
State from modifying or closing Oakley or Columbia, or
developing alternative community placements for the youth
currently in the facilities.
(K) No person or entity is intended to be
a third-party beneficiary of the provisions of this
MOA or the Consent Decree for purposes of any civil, criminal,
or administrative action, and accordingly, no person
or entity may assert any claim or right as a beneficiary
or protected class under these agreements. These agreements
are not intended to impair or expand the right of any person
or organization to seek relief against the State, Division
or its officials, employees, or agents for their
conduct or the conduct of Division employees; accordingly,
they do not alter legal standards governing any such claims,
including those under Mississippi law.
In this MOA, the following definitions apply:
(L) "Columbia" means the Columbia Training School located
at 1730 Highway 44, Columbia, Mississippi, and any facility
that is built to replace or supplement Columbia.
(M) "Division" means
the Division of Youth Services within the Mississippi Department
of Human Services that oversees the safety, treatment, and
rehabilitation of juveniles residing at Oakley and Columbia.
(N) "DOJ" means the United States Department of Justice,
which represents the United States in this matter.
(O) The term "IEP" shall
mean an Individual Education Plan as defined by the Individuals
with Disabilities Education Act (IDEA), 20
U.S.C. § 1400
et seq., and the regulations promulgated thereunder.
(P) "Effective Date" means the date the MOA is filed with
(Q) "Implement" means to give practical effect and ensure
that the provision is working as intended and actually
fulfilled by concrete measures, including appropriate training
of relevant staff.
(R) "Include" or "including" means "include, but not be
limited to" or "including, but not limited to."
(S) "Oakley" means the Oakley Training School, which is also
known as the Mississippi Youth Correctional Complex, and
is located at 2375 Oakley Road, Raymond, Mississippi, and
any facility that is built to replace or supplement Oakley.
(T) "Qualified medical professional" means
a physician, nurse or other medical provider licensed in
Mississippi and sufficiently trained to provide the services
he or she undertakes to provide.
(U) "Qualified mental health professional" means a mental
health care provider licensed in Mississippi and sufficiently
trained to provide the services he or she undertakes to
(V) "Quality Assurance Program" means a system of self-auditing
and improvement to assess the implementation and
effectiveness of all remedies instituted pursuant to this
MOA, to identify deficits that may exist, and to effectuate
new measures to cure deficits identified.
(W) "Rehabilitative Services" means programming and treatment
provided to all youth in the facilities. For each youth,
programming and treatment shall be suitable to the youth's
particular needs and shall address the underlying causes
for the youth's confinement in the facility.
(X) "Restraints" means
any chemical or mechanical device, including OC spray, used
to control the behavior of a youth.
(Y) "Serious mental illness" means youth who, if properly
diagnosed, would be diagnosed with the following disorders:
psychoses, schizophrenia, bipolar with psychotic features,
depression with psychotic features, severe post-traumatic
stress disorder, and schizoaffective disorders.
(Z) "SIU" means
the Special Intervention Units at Oakley and the Cleveland
and McGehee cottages at Columbia, designed for youth with
behavioral and disciplinary problems and youth who are
(AA) "State" means the Defendants as described in paragraph
(BB) "Suicide Precautions" means any level of watch, observation
or measures to prevent self-harm.
(CC) "The facilities" means Oakley and Columbia, collectively,
and any residential secure facilities operated by or under
contract with the Division of Youth Services.
(DD) "Train," means
sufficiently instruct in the skills addressed, including ongoing
assessment or mastery of instructional material.
(EE) "Youth" means any juvenile or juvenilescommitted by a
court to and residing at the facilities during the operation
of this MOA.
III. CARE REQUIRED BY THE CONSTITUTION AND FEDERAL STATUTES
The purpose of this MOA is to protect some of the
constitutional and federal statutory rights of juveniles
committed to Oakley and Columbia. The terms and requirements of
this MOA shall be interpreted to be consistent with the remedial
measures necessary to protect these rights of the juveniles.
IV. SUBSTANTIVE REMEDIAL MEASURES
A. MENTAL HEALTH CARE AND REHABILITATIVE SERVICES
(1) Appropriate Care The State shall provide adequate mental
health care and adequate rehabilitative servicesto youth
in the facilities.
(2) Adequate Treatment The State shall develop
and implement policies, procedures, protocols, and practices
to ensure that adequate mental health and substance abuse
care and treatment services (including timely emergency
services) are provided by qualified mental health professionals
utilizing evidence-based, generally accepted treatment
(3) Establishment of Director of Program Services
shall designate a Director of Program Services to oversee
the mental health care and rehabilitative treatment of
youth at the facilities. The State shall provide the Director
with sufficient staff and resources to perform the tasks
required by this MOA, including:
a. Develop and implement policies and procedures that
will ensure adequate mental health care and rehabilitative
b. Develop and implement an adequate training program
to ensure the adequate implementation of mental health
care and rehabilitative services;
c. Ensure that youth receive the care they need by
developing and implementing an adequate quality
d. Oversee the mental health care and rehabilitative
services including monitoring the performance of
psychologists, counselors, and psychiatrists; and
e. Monitor whether staffing and resources are sufficient
to provide adequate mental health care and
rehabilitative services to the facilities' youth and
to ensure compliance with this MOA.
(4) Admissions Consultation and Referral The State shall
transfer promptly youth with serious mental illness
to appropriate settings that meet their needs. The State
shall ensure that qualified mental health professionals are
readily available for timely consultations regarding
admissions decisions. Youth who need immediate mental
health services but do not need to be transported out
of the facilities shall receive such services by qualified
mental health professionals.
(5) Mental Health Screening The State shall develop
and implement policies, procedures, and practices to ensure
that all youth admitted to the facilities are comprehensively
screened by qualified mental health professionals in
a timely manner utilizing reliable and valid measures.
When no such professional is on-site to conduct the screening,
it shall be conducted by another staff member who has
received specific training in conducting such assessments.
In such a case, the staff member shall, as soon as is practicable,
then contact the mental health professional and confer.
(6) Immediate Referral to a Qualified Mental Health Professional If
the mental health screen identifies an issue that places
the youth's safety at immediate risk, the youth shall be
immediately referred to a qualified mental health treatment
professional for assessment, treatment, and any other appropriate
action, such as transfer to another, more appropriate setting.
(7) Mental Health Assessment The State shall ensure
that youth whose mental health screens indicate the possible
need for mental health services receive timely, comprehensive
and appropriate assessments by qualified mental health
professionals. Assessments shall be updated as new
diagnostic and treatment information becomes available.
(8) Referral to a Qualified Mental Health Provider The
State shall develop and implement policies and procedures
for referral of youth to a qualified mental health provider
for a timely mental health evaluation.
(9) Referral to a Psychiatrist The State shall
develop and implement policies and procedures for referral
of youth to a psychiatrist for a timely mental health evaluation.
(10) Duties of the Psychiatrist Each youth in need
of psychiatricservices, including monitoring of the use
of psychotropic medications, shall be under the care of
a licensed psychiatrist. The State shall employ or contract
for sufficient psychiatric services to permit a psychiatrist
to fulfill the following functions:
a. Conduct needed psychiatric evaluations prior to placing
a youth on psychotropic medications;
b. Monitor, as appropriate but at least monthly, the
efficacy and the side effects of psychotropic
medications, including consultation with the facility
medical, counseling, and security staff;
c. Participate in treatment team meetings for youth under
the psychiatrist's care;
d. Provide individual counseling and psychotherapy when
needed, in coordination with facility psychologists;
e. Evaluate and treat in a timely manner all youths
referred as possibly in need of psychiatric services;
f. Provide adequate documentation of treatment in the
facility medical records.
(11) Review of Facility Records by Psychiatrists, Psychologists
and Counselors The psychiatrist, psychologists, and
counselors shall review incident reports, disciplinary
tickets, suicide watch logs, and lockdown logs of youthunder
their careto determine whether their treatment is working
and, if not, how it should be modified.
(12) Treatment Plans The State shall ensure that each youth
in need of mental health and/or substance abuse treatment
shall have an appropriate treatment plan, including an
appropriate behavior management plan, developed in accordance
with generally accepted professional standards of practice,
and that such plans are appropriately implemented. The
State shall ensure that all youth in and discharged from
suicide precaution receive mental health treatment in
accordance with a treatment plan developed by a qualified
mental health professional while in the facilities. The
State shall make documented good-faith efforts to include
parents or guardians in the creation and revision of the
treatment plan, unless their participation would be inappropriate
for some reason (e.g., the child has been removed
from the parent's custody).
(13) Content of Treatment Plans The State shall develop
and implement policies and procedures for the required
content of treatment plans, which shall include:
a. That the treatment plan be individualized;
b. An identification of the mental and/or behavioral
health issues to be addressed;
c. A description of any medication or medical course
of action to be pursued, including the initiation of
d. A description of planned activities to monitor the
efficacy of any medication or the possibility of any
e. A description of any behavioral management plan or
strategies to be undertaken;
f. A description of any counseling or psychotherapy to
g. A determination of whether the type or level of
treatment needed can be provided in the youth's current
h. A plan for monitoring the course of treatment, and
if necessary, for revising the treatment plan.
(14) Progress Notes The State shall promulgate and implement
a policy requiring that all qualified mental health
professionals be required to create and utilize progress
notes to document each interaction and/or assessment
of youth with serious mental illnesses. The State shall
ensure that qualified mental health professionals thoroughly
review a youth's clinical, medical, and master files for
documentation of any prior suicidal behavior.
(15) Access to a Qualified Mental Health Professional The
State shall develop and implement a policy and procedure
to ensure that youth who seek access to a qualified mental
health professional are provided appropriate access in
a timely manner.
(16) Mental Health Involvement in Housing Decisions The
State shall develop and implement a system for ensuring
that mental health issues are adequately considered in
making housing decisions, and shall ensure that mentally
ill youth receive appropriate housing.
(17) Staffing The State shall staff, by
contract or otherwise, the facilities
with adequate numbers of child and adolescent psychiatrists
and other qualified mental health professionals to meet
the mental health needs of youth residents. Psychiatric
care shall be integrated with other medical and mental
health services and shall comport with generally accepted
practices. The State shall ensure that there are sufficient
numbers of adequately trained direct care and supervisory
staff to allow youth reasonable access to structured programming.
(18) Informed Consent The State shall ensure that all youth
are provided with information regarding the goals, risks,
benefits and potential side effects of psychotropic
medications offered for their treatment, as well as an
explanation of what the consequences of not treating
with the medication might be, so that they can provide
informed consent. The State shall make documented good-faith
efforts to provide parents and guardians with similar information
before renewing a prescription from a community provider
or starting, modifying, or discontinuing a prescription,
so that they can provide informed consent. However, following
documented good-faith efforts, treatment need not be
(19) Mental Health Medications The State shall develop
and implement policies, procedures, and practices to ensure
that psychotropic medications are prescribed, distributed,
and monitored properly and safely, and consistent with
generally accepted practices. The State shall provide
regular training to all health and mental health staff
on current issues in psychopharmacological treatment, including
information necessary to monitor for side effects and
efficacy. The State shall issue and implement policies
and procedures for the administration of appropriate
tests (including, for example, blood tests, EKGs, and Abnormal
Involuntary Movement Scale tests) to monitor the efficacy
and any side effects of psychotropic medications in
accordance with generally accepted professional standards.
(20) Mental Health and Developmental Disability Training
for Direct Care Staff The State shall develop and implement
strategies for providing direct care and other appropriate
staff with training on mental health and developmental
disabilities sufficient for staff to understand the
behaviors and needs of youth residents in order tosupervise
(21) Transition Planning The State shall ensure that staff
create transition plans for youth leaving the facilities.
Plans shall include providing the youth and his or her
parents or guardian with information regarding mental
health resources available in the youth's home community;
making referrals to such services when appropriate; making
initial appointments with community service providers;
and supplying appropriate psychiatric medications upon
release from the facilities. Beyond these requirements,
nothing in this MOA shall make the Defendants responsible
for providing mental health services to youth no longer
residing at the facilities.
(22) Structured Programming The State shall provide adequate
structured programming, including an appropriate mix
of rehabilitative, recreational or leisure activities,
during non-school hours and days. The State shall develop
and implement structured programming at each facility from
the end of the school day until the youth go to bed,
and on weekends. For youth housed in closed-cell environments,
structured programming shall be designed to ensure that
youth are not confined in locked cells except: (a) from
after structured programming to wake-up, (b) as necessary
to allow youth to calm down immediately after a violent
incident, or (c) following an adequate disciplinary hearing,
pursuant to an appropriate disciplinary sanction. The
structured programming will be designed to modify behaviors
and provide rehabilitation to the types of youth committed
to each facility. The State shall utilize teachers,
school administrators, correctional officers, caseworkers,
school counselors, cottage staff, and any other qualified
assistance to develop and implement the structured
(23) Placements in the Paramilitary Program The State shall
cease the placement of youths into paramilitary programs
when, by reason of mental or physical disability or maturity
level, the youth cannot reasonably be expected to obtain
any benefit or the placement will likely result in physical
or psychological harm to the youths. This includes, but
is not limited to, youth who are seriously mentally ill
or who have mental retardation, and youth who are younger
than 13 years of age.
(24) Alternative Rehabilitative Programs The State shall
develop alternative rehabilitativeprogramsfor those youth
who should not or cannot participate in the paramilitary
program, as determined by qualified mental health
(25) On-the-Spot Corrections in the Paramilitary Program The State shall adopt and implement a policy, and provide
specific training, for sanctions or "on-the-spot
corrections" that will be permitted in paramilitary programs
at the facilities and shall prohibit the use of any
disciplinary measure not included in the policy. The
policy shall also designate the maximum permissible extent
or duration of the sanction.
(26) Notice to Youth of Facility Rules and
Incentives/Consequences for Compliance The State shall
explain the paramilitary program or alternative
rehabilitative program to all youth during an orientation
session, which shall set forth facility rules and the
positive incentives for compliance as well as the sanctions
for violating those rules. The State shall also explain
to all youth during an orientation session the behavior
management program and the positive incentives for good
behavior, as well as disciplinary measures for misbehavior.
The rules for all programs should be posted conspicuously
in facility living units.
(27) Disciplinary Process and Accommodations for Youth
with Disabilities The State shall develop and implement policies
and procedures to make reasonable accommodations in its
disciplinary processes for youth with mental disabilities.
Whenever a youth with a mental disability is engaged
in the disciplinary process, a qualified mental health
professional shall be consulted to ensure that the accommodation
is reasonable for that youth.
B. SPECIAL EDUCATION
of Special Education The State shall, at all times, provide
all youth confined at the facilities with adequate special
education in compliance with the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., and regulations
promulgated thereunder, and this MOA.
(29) Director The State shall designate a Director of
Education to oversee the facilities. The Director shall
meet minimum standards as specified by the State. The State
shall provide the Director with sufficient staff and resources
to perform the tasks required by this MOA, including:
a. Overseeing the special education programming in the
facilities, including the development and
implementation of policies, procedural manuals, and
b. Monitoring whether special education staffing and
resources are sufficient to provide adequate special
education services to youth at both facilities and to
ensure compliance with this MOA.
c. Developing and implementing a quality assurance program
for special education services.
d.Developing and implementing an adequate vocational
education program for youth with disabilities.
e. Developing and implementing a curriculum for special
education instruction at the facilities.
f. Ensuring that special education teachers are
appropriately licensed to teach assigned courses.
(30) Special Education upon Intake The State shall ensure
that all students who qualify for special education services
receive such services within a reasonable time following
intake at the facilities.
(31) Parent, Guardian and Surrogate Involvement The State
shall develop and implement policies, procedures and
practices to ensure appropriate parent, guardian or surrogate
parent notice and involvement in evaluations, eligibility
determinations, IEPs, placement and provision of special
education services. This shall include holding IEP
development and review meetings through telecommunications
technology or during times reasonably calculated to
accommodate the schedules of parents, guardians, or
surrogate parents. The State shall post notices in each
facility stating the rights of students, parents or
guardians regarding education services, including special
(32) Staffing The Superintendent(s) shall develop and
implement an education staffing plan to ensure adequate
staff to comply with the terms of this MOA. This plan shall
a. Sufficient numbers of certified special education
teachers and staff to provide all youth with the
opportunity to attend school full-time and to obtain
adequate educational services, and to provide teachers
with sufficient time to plan lessons, grade
assignments, and participate in special education
b. Sufficient psychologist services to provide
psychologist participation in the development of IEPs,
administration of psycho-educational assessments,
consultation with teachers and staff, and individual
counseling related specifically to issues in youths'
c. Sufficient services of speech and language
professionals, audiologists, and other specialized
professionals to meet the related services needs
specified in IEPs.
(33) Screening for Special Education Needs Consistent with
federal regulations, the State shall provide prompt and
adequate screening of youth for special education needs and
shall identify youth who are receiving special education in
their home school districts or who may be eligible to
receive special education services but have not been so
identified in the past. Such screenings shall include:
a. Guidelines for interviewing youth upon admission to
determine past receipt of special education services;
b. Protocols developed in conjunction with local school
districts and the State Department of Education for
expedited reporting of special education status of
students entering the facilities, conducting adequate
testing of youths' substantive educational knowledge,
and performing necessary vision and hearing tests;
c. Policies describing the required activities of Teacher
Support Team pre-referral functions, including criteria
under which staff or teachers must refer a student for
review, frequency at which interventions must be
reviewed, and procedures for referral for Child Study
evaluation if interventions are unsuccessful;
d. Policies describing the requirements for Child Study
and comprehensive evaluation procedures to determine
eligibility for special education services;
e. Policies describing the criteria for multi-disciplinary
team decision-making regarding eligibility for special
f. Protocols for re-evaluations to update eligibility
certifications that have become outdated.
(34) Individual Education Plans
a. The State shall, in a reasonable time period,create
and/or implement an Individual Education Plan ("IEP"),
as defined in 34 C.F.R. § 300.340, for each youth who
qualifies for an IEP. As part of satisfying this
requirement, the State shall conduct required annual
reviews of IEPs, adequately document the provision
of special education services, and comply with
requirements regarding parent, surrogate, and student
participation in the IEP process. The State shall
hold team meetings once per week or more often, if
necessary, to develop or review IEPs for qualified
special education students in accordance with federal
b. In developing or modifying the IEP, the State shall
ensure that the IEP reflects the individualized
educational needs of the youth and that services are
provided accordingly. When the nature or severity of
a youth's disability is such that education in regular
classes with the use of supplementary aids and services
cannot be achieved satisfactorily, the State shall
provide an appropriate alternate educational setting
in the least restrictive environment.
c. The State shall ensure that each developed or modified
IEP include documentation of the team's consideration
of the youth's need for related services and transition
planning, and identifies the party responsible for
providing all transition services. Nothing in this MOA
shall require the State to provide services to the
youth after discharge from the facilities.
d. The State shall assess each child for necessary related
services, address these needs in the IEP, and provide
these services as often as determined necessary by the
(35) Vocational Education The State shall develop and implement
adequate vocational education services for youth with
(36) Forwarding Screening and Assessment Information
upon Transfer The State shall ensure that if a youth is
discharged from the facilities before the completion
of the teacher support team intervention or educational
evaluation required above is complete, the facilities shall
forward to the superintendent of the youth's receiving
school district all information regarding screening and
evaluations completed to date, noting what evaluations
are yet to be performed.
(37) Training and Quality Assurance
a. The Director shall
design and implement annual in-service training requirements
for special education staff of not less than four
days per year, to enhance their ability to implement
their duties under the provisions of this MOA.
b. The Director shall be charged with quality assurance
of all special education services at all of the
facilities. The State shall develop and implement a
written quality assurance program. This program shall
include a system of on-going review of at least a
representative sample of IEPs developed or modified in
the facilities to monitor quality and assure compliance
with the requirements of facilities' policies and the
c. The Director shall ensure that all special education
teachers take the required steps to keep their educator
licenses current and appropriate to the courses they
are required to teach.
V. COMPLIANCE AND QUALITY
(38) Document Development and Revision The State shall revise and/or develop policies, procedures,
protocols, training curricula, and practices to ensure that
they are consistent with, incorporate, address, and implement
all provisions of this MOA. The State shall revise and/or
develop as necessary other written documents such as screening
tools, logs, handbooks, manuals, and forms, to effectuate
the provisions of this MOA.
(39) Document Review Within 30 days after the filing of
this MOA with the Court, the State shall submit a master
plan to DOJ that establishes a time line of up to one year
to revise and/or develop written policies, procedures,
protocols, training materials, and screening and assessment
tools to effectuate the provisions of this MOA. The master
plan and the policies, procedures, protocols, training
materials, and screening and assessment tools shall be
submitted to the DOJ for review and approval. The DOJ shall
provide prompt guidance to the State, including specific
explanations as to how the provisions, policies, or procedures,
if any, are inconsistent with the terms of the MOA, and
shall suggest revisions. In the event that the DOJ asserts
that policies, procedures, and other written documents
are not in compliance with the terms of this MOA, the parties
will agree to a schedule for the parties' experts to communicate.
The State shall revise policies as necessary to conform
with the terms of this MOA. If, after the policies, procedures,
and practices affected by this MOA are implemented, either
of the parties determines that a policy, procedure, or
practice, as implemented, fails to effectuate the terms
of this MOA, the parties shall consult and the policy,
procedure, or practice shall be revised as necessary
to conform to the terms of this MOA. If the parties are
unable to agree on revisions to the policies, etc., the
parties shall submit the issue to the Monitor. If either
party is unsatisfied with the Monitor's resolution, then
either party may invoke mediation. If neither party requests
mediation, or at the conclusion of mediation, the dispute
may be submitted to the Court.
(40) Quality Assurance Programs The State shall develop
and implement Quality Assurance programs consistent with
generally accepted professional practices for each
discipline addressed in this MOA.
(41) Corrective Action Plans For each discipline addressed
in this MOA, the State shall develop and implement policies
and procedures to address problems that are uncovered
during the course of quality assurance activities. The
State shall develop and implement corrective action plans
to address these problems in such a manner as to prevent
them from occurring again in the future.
(42) Technical Assistance DOJ will provide the State with
technical assistance in the development of policies and
procedures required to effectuate the terms of this MOA.
DOJ will assist the State in identifying additional financial
resources to supplement those resources currently allocated
to the facilities.
VI. MONITORING AND ENFORCEMENT
(43) Monitor Selection The parties have
jointly selected Joyce Burrell to serve as the Monitor.
Should the position become vacant and the parties cannot
agree on a replacement, the parties shall recommend candidates
to the Court pursuant to the terms of the Consent Decree,
and the Court will select the Monitor. Neither party, nor
any employee or agent of either party, shall have any supervisory
authority over the Monitor's activities, reports, findings,
or recommendations. The cost for the Monitor's fees and
expenses shall be borne by the State. The selection of
the Monitor shall be conducted solely pursuant to the procedures
set forth in this MOA, and will not be governed by any
formal or legal procurement requirements. The
Monitor may be terminated only for good cause, unrelated
to the Monitor's findings or recommendations, and only
with prior notice to and approval of both parties or
by Court order.
(44) Monitor Qualifications The Monitor shall have experience
and education, or training in the field of juvenile justice.
The Monitor may also have education, training, or experience
in general or special education, adolescent health and
mental health needs (particularly the needs of
institutionalized adolescents), and institutional abuse
and incident investigations.
(45) Monitor Access The Monitor shall have full and complete
access to the facilities, all facility and Division records,
staff, and residents. The State shall direct all employees
to cooperate fully with the Monitor. All non-public
information obtained by the Monitor shall be maintained
in a confidential manner, except that the Monitor's reports
shall be filed with the Court and shall be public documents.
Other than as expressly provided in this MOA, this MOA
shall not be deemed a waiver of any privilege or right
the State may assert, including those recognized at common
law and created by statute, rule or regulation against
any other person or entity with respect to the disclosure
of any information.
(46) Monitor Ex Parte Communications The Monitor shall
be permitted to initiate and receive ex parte communications
with all parties.
(47) Limitations on Public Disclosures by Monitor Except
as required or authorized by the terms of this MOA
or the parties acting together, neither the Monitor nor
any member of the Monitor's staff shall: make any public
statements (at a conference or otherwise) or issue findings
with regard to any act or omission of the State or its
agents, representatives or employees, or disclose non-public
information provided to the Monitor or the Monitor's
staff pursuant to this MOA. Any press statement made
by the Monitor or any member of the Monitor's staff regarding
their employment must first be approved by the parties.
Neither the Monitor nor any member of the Monitor's
staff shall testify in any other litigation or proceeding
with regard to any act or omission of the State, Division
or any of their agents, representatives, or employees
related to this MOA, nor testify regarding any matter or
subject that he or she may have learned as a result of
his or her performance under this MOA. Reports issued by
the Monitor shall not be admissible against the State in
any proceeding other than a proceeding related to the enforcement
of the State's agreements with DOJ. Unless such conflict
is waived by the parties, the Monitor shall not accept
employment or provide consulting services that would present
a conflict of interest with the Monitor's responsibilities
under this MOA, including being retained (on a paid or
unpaid basis) by any current or future litigant or claimant,
or such litigant's or claimant's attorney, in connection
with a claim or suit against the State or its departments,
officers, agents or employees. The Monitor is not a state
or local agency or an agent thereof, and accordingly the
records maintained by the Monitor shall not be deemed public
records subject to public inspection. Neither the Monitor
nor any person or entity hired or otherwise retained
by the Monitor to assist in furthering any provision of
this MOA shall be liable for any claim, lawsuit or demand
arising out of the Monitor's performance pursuant to this
MOA. This paragraph does not apply to any proceeding before
a court related to performance of contracts or subcontracts
for monitoring this MOA.
(48) Monitor Reports The Monitor shall provide the Court
and the parties with reports describing the steps taken
by the State to implement this MOA and evaluate the extent
to which the State has complied with each substantive
provision of the MOA. Such reports shall be issued every
four months, unless the parties agree otherwise. The reports
shall be provided to the parties in draft form for comment
at least two weeks prior to their issuance. These reports
shall be written with due regard for the privacy interests
of individual youth and staff and the interest of the State
in protecting against disclosure of non-public information.
(49) Monitor Budget The Monitor shall have a budget sufficient
to allow the Monitor to carry out the responsibilities
described in this MOA and the Consent Decree. The Monitor
may consult experts or consultants retained by either
party. The Monitor may initiate and receive ex parte communications
with the parties and with the parties' consultants.
VII. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
(50) DOJ Access The DOJ shall have full
and complete access to the facilities, and to youth records,
staff records, staff and residents of those facilities regarding
the topics addressed in this MOA. The DOJ shall have the
right to conduct unannounced visits to the facilities. The
DOJ shall have the right to conduct interviews with staff
and confidential interviews with residents, and former
residents. State attorneys may be present at interviews
of staff and tours of facilities. All non-public information
obtained by the DOJ shall be maintained in a confidential
manner. Other than as expressly provided in this MOA,
this MOA shall not be deemed a waiver of any privilege
or right the State may assert, including those recognized
at common law and created by statute, rule or regulation
against any other person or entity with respect to the
disclosure of any information. Such information may,
however, be used in any proceedings to enforce the requirements
of this MOA.
(51) State Response to DOJ Questions Limited to ten succinct
questions without subparts within a six month period,
within 30 days of receipt of written questions from the DOJ
concerning the State's compliance with this MOA, the
State shall provide the DOJ with written answers and access
to any requested documents regarding the State's compliance
with the requirements of this MOA. Any dispute regarding
the scope or burden of the requests shall be resolved
by the Monitor.
(52) State Documentation of Compliance The State shall
maintain sufficient records to document its compliance with
all of the requirements of this MOA. The State shall also
maintain (so long as this MOA remains in effect) any and
all records required by or developed under this MOA.
(53) State Compliance Reports Fourteen calendar days before
each report from the Monitor is due, the State shall
provide the Monitor and the United States with a status
report regarding its compliance with this Agreement.
(54) Privileges This MOA shall not be deemed to waive the
attorney/client, attorney work product, deliberative
process, or executive privileges. The State shall not
assert physician/patient or psychotherapist/patient
privileges with respect to the monitoring of this MOA
by DOJ and the Monitor.
VIII. IMPLEMENTATION AND TERMINATION
(55) Information to Employees The State
shall ensure that all current and future relevant Division
employees understand the terms of this MOA (to the extent
necessary to carry out their job duties and responsibilities)
and implement the terms of the MOA.
(56) Implementation The State shall implement all reforms
necessary to effectuate this MOA. The implementation
will begin immediately upon the filing of this MOA. The
parties agree that the systemic and comprehensive nature
of this MOA will require implementation and refinement
of policies and programs over a number of years. In addition,
the parties agree that the State shall make continuous
progress during the first three years of this Agreement
to provide adequate juvenile correctional officers, counselor
aides, and security officers. The parties also agree that
the State shall make continuous progress during the first
eighteen months of this Agreement to provide adequate teachers,
nurses, and nurse practitioners. As a separate matter,
minor, inconsequential, sporadic, unintentional or isolated
harmless instances of noncompliance with the MOA shall
not be a basis for enforcement, provided they do not
affect a substantial interest of the youth.
(57) Integration This MOA shall constitute the entire integrated
agreement of the parties with respect the United States'
claims concerning mental health, rehabilitative services,
education, and special education (as discussed above
in Section I, a separate agreement addresses the United
States' claims concerning protection from harm and medical
and dental care). With the exception of DOJ's findings
letter issued about the facilities in June 2003, the Consent
Decree, and any DOJ technical assistance recommendations,
no prior or contemporaneous communications, oral or written,
will be relevant or admissible for purposes of determining
the meaning of any provisions herein in this litigation
or in any other proceeding.
(58) Enforcement If DOJ believes that the State has failed
to substantially comply with any obligation under this
MOA, DOJ will give written notice of the failure to the
State. The parties shall conduct good-faith discussions
to resolve the dispute. If the parties are unable to
reach agreement within 15 days of the DOJ's written notice,
the parties shall submit the dispute to mediation. The
parties shall split the cost of the mediator. In the first
instance, the mediator shall be Judge Reuben Vincent Anderson.
If Judge Anderson is not available, the mediator shall
be Robin Rosenberg. Thereafter, the order in which mediators
are contacted shall alternate between mediations. If
neither of these mediators is available, the Court shall
select a mediator. The parties shall attempt in good faith
to mediate the dispute for a minimum of 30 days prior to
seeking the reinstatement of the civil proceeding that
this MOA settled. The terms of this MOA are not subject
to state or federal court enforcement other than the
reinstatement of those paragraphs of the complaint that
this MOA settled. However, in case of an emergency posing
an immediate threat to the health or safety of youths,
the United States may omit the notice and cure requirements
herein (including the provision regarding mediation), before
(59) Agreement Coordinator The State shall appoint an Agreement
Coordinator to coordinate and oversee compliance with
this MOA and the Consent Decree.
(60) Termination This MOA shall terminate four years from
the date it is filed with the Court. The MOA may also
end earlier than four years from the date it is ordered
by the Court if the State has substantially complied with
each of the provisions of the MOA and has maintained
substantial compliance for at least two years. The burden
shall be on the State to demonstrate this level of compliance.
There are two substantive sections of this MOA - mental
health care and rehabilitative services, and special education.
A section of the MOA may be terminated if the State sustains
its burden with respect to that section of the MOA.
Noncompliance with mere technicalities, or temporary
failure to comply during a period of otherwise sustained
compliance will not constitute failure to maintain substantial
compliance. At the same time, temporary compliance during
a period of sustained noncompliance shall not constitute
(61) Defense of MOA The parties agree to defend the provisions
of this MOA. The parties shall notify each other of
any court challenge to this MOA. In the event any provision
of this MOA is challenged in any local or state court,
removal to a federal court shall be sought.
(62) Successors This MOA shall be binding on all successors,
assignees, employees, agents and all those working for
or on behalf of the State.
(63) No Waiver for Failure to Enforce Failure by either
party to enforce this entire MOA or any provision thereof
with respect to any deadline or any other provision herein
shall not be construed as a waiver of its right to enforce
other deadlines or provisions of this MOA.
(64) Notice "Notice" under this MOA shall be provided
by courier or overnight delivery and shall be provided
to the Governor of the State of Mississippi and to the
Attorney General of the State of Mississippi.
(65) Unforeseen Delay If any unforeseen circumstance occurs
which causes a failure to timely carry out any requirements
of this MOA, the State shall notify the DOJ in writing
within 20 calendar days of the time that the State becomes
aware of the unforeseen circumstance and its impact on
the State's ability to perform under the MOA. The notice
shall describe the cause of the failure to perform and
the measures taken to prevent or minimize the failure.
The State shall implement all reasonable measures to
avoid or minimize any such failure.
(66) Non-Retaliation The State agrees that it shall not
retaliate against any person because that person has
filed or may file a complaint, provided information or
assistance, or participated in any other manner in an investigation
or proceeding relating to this MOA.
(67) Subheadings All subheadings in this MOA are written
for convenience of locating individual provisions. If
questions arise as to the meanings of individual provisions,
the parties shall follow the text of each provision.
(68) Severability In the event any provision of this MOA
is declared invalid for any reason by a court of competent
jurisdiction, said finding shall not affect the remaining
provisions of this MOA.
(69) Attorney's Fees and Expenses Each party shall bear
the cost of their fees and expenses incurred in connection
with this cause.
FOR THE UNITED STATES:
|/s/Dunn O. Lampton
||/s/R. Alexander Acosta
|DUNN O. LAMPTON
||R. ALEXANDER ACOSTA
|United States Attorney
||Assistant Attorney General
|Southern District of Mississippi
||Civil Rights Division
||/s/Bradley J. Schlozman
||BRADLEY J. SCHLOZMAN
||Deputy Assistant Attorney General
||Civil Rights Division
||/s/Shanetta Y. Cutlar
||SHANETTA Y. CUTLAR
||Special Litigation Section
|| /s/Tammi R. Simpson
||TAMMI R. SIMPSON
||JEFFREY J. RESETARITS
||LAURA L. COON
||MATTHEW J. DONNELLY
||U.S. Department of Justice
||Civil Rights Division
||Special Litigation Section
||950 Pennsylvania Avenue, N.W.
||Washington, D.C. 20530
FOR THE STATE:
|State of Mississippi
|Department of Human Services
|Division of Youth Services
|State of Mississippi