1 First Ints.An… · Web viewPLAINTIFF ANTON BRANCH’S RESPONSE TO DEFENDANTS’ FIRST SET OF ... The Responding Plaintiff answers the remainder of this ... CERTIFICATE OF SERVICE

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

(Western Division)

_____________________________________

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ROSIE D., et al.,

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Plaintiffs,)

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v.

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Civil Action No.

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01-30199-MAP

MITT ROMNEY, et al.,

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Defendants.)_____________________________________)

PLAINTIFF ANTON BRANCHS RESPONSE TO DEFENDANTS FIRST SET OF INTERROGATORIES

Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, named plaintiff Anton Branch (hereinafter, the Responding Plaintiff) hereby responds to the First Set of Interrogatories propounded by the defendants as follows:

GENERAL RESPONSES AND OBJECTIONS

Each of the Responding Plaintiffs responses, in addition to any specifically stated objections, is subject to and incorporates the following general responses and objections. The assertion of the same, similar, or additional objections, or a partial response to any individual request does not waive any of the plaintiffs general responses and objections.

1.The Defendants First Set of Interrogatories do not define the term plaintiffs and, therefore, will be interpreted and used herein only as the named plaintiffs or the Responding Plaintiff, as appropriate.

2. The following responses reflect the current state of the plaintiffs knowledge, understanding and belief respecting matters about which inquiry has been made. The plaintiffs expressly reserve their right to supplement or modify these responses with such pertinent information as they may hereafter discover or as may be informed by the opinions of experts retained by the parties to testify in the trial of this matter, and will do so to the extent required by the Federal Rules of Civil Procedure. The plaintiffs expressly reserve the right to rely on, at any time, including trial, subsequently discovered documents and/or materials that have been produced promptly upon discovery.

3.The plaintiffs object to any interrogatory that seeks information constituting or containing information concerning communications between the plaintiffs and their counsel, which are protected by the attorney-client privilege.

4.The plaintiffs object to any interrogatory that seeks information constituting or containing information prepared in anticipation of or as a result of litigation or which is otherwise protected by the work product doctrine or other available privilege or protection.

5.The inadvertent provision of information or the production by the plaintiffs of documents pursuant to Fed. R. Civ. P. 33(d) containing information protected from discovery by the attorney-client privilege, work product doctrine or any other applicable privilege, shall not constitute a waiver of such privileges with respect to that information or those or any other documents. In the event that inadvertent production occurs, the Defendants shall return all inadvertently produced documents to the plaintiffs upon request, and/or shall make no use of the contents of such information or documents nor premise any further discovery on information learned therefrom.

6.The plaintiffs object to any interrogatory to the extent that it purports to impose upon them any obligation beyond those imposed by the Federal Rules of Civil Procedure, including, but not limited to, any interrogatory that exceeds the scope of Federal Rules of Civil Procedure 26(b) and 33.

7.The plaintiffs object to these interrogatories to the extent that they are over-broad, unduly burdensome, vague, ambiguous, confusing, require speculation to determine their meaning or use imprecise specifications of the information sought.

8.The plaintiffs object to any interrogatory to the extent that it seeks information neither relevant to the subject matter of this litigation nor reasonably calculated to lead to the discovery of admissible evidence.

9.The plaintiffs object to any interrogatory as unduly and unnecessarily burdensome to the extent that it seeks information that is matter public record, already in the Defendants possession, or otherwise readily available to the Defendants, and, therefore, may be accessed and obtained by the Defendants with less burden than the plaintiffs can identify and provide requested information.

10. None of the objections or responses contained herein is an admission concerning the existence of any documents or materials, the relevance or admissibility of any documents, materials or information, or the truth or accuracy of any statement or characterization contained in Defendants First Set of Interrogatories. The plaintiffs written responses are made without waiving, but, on the contrary, expressly reserving: (a) the right to object, on the grounds of competency, privilege, relevancy, materiality or any other proper grounds, to the use of the information provided herein, in whole or in part, in any subsequent proceeding in this action or any other action; (b) the right to object on any and all grounds, at any time, to other discovery requests involving or relating to the subject matter of these requests; and (c) the right at any time to revise, correct, add or clarify any of the responses provided herein.

11.The plaintiffs object to any interrogatory to the extent it is a contention interrogatory. Pursuant to Fed. R. Civ. P. 33(c), the plaintiffs object to any such interrogatory on the grounds that it is premature in light of the present early stage of discovery. The plaintiffs expect to receive documents through discovery that will concern and provide information responsive to such interrogatories. Because Fed. R. Civ. P. 26 imposes a duty of supplementation, complying with such interrogatories would require the plaintiffs to continually supplement their responses each time they receive an additional document or information concerning the subject contention on which the interrogatory seeks information. Doing so would cause the plaintiffs to suffer unnecessary burden and expense and would not serve to narrow the issues that are in dispute. See, e.g, Nestle Foods Corporation, v. Aetna Casualty and Surety Company, 135 F.R.D. 101, 110-111 ( D.N.J. 1990); Conopco, Inc. v. Warner-Lambert Co., 2000 WL 342872, * 4 (D.N.J. 2000); B. Braun Medical Inc., v. Abbot Laboratories, 155 F.R.D. 525, 527 (E.D. Pa. 1994). Accordingly, in response to any such contention interrogatory, the plaintiffs will provide a response encompassing the current state of their knowledge, belief, and understanding, but reserve the right to supplement their interrogatory response pursuant to Fed. R. Civ. P. 26 at the conclusion of discovery, both as to the merits of this action and with respect to experts designated to testify at trial.

12.The plaintiffs object to any interrogatory that seeks information that is already in the defendants possession.

13. The plaintiffs state that the answer to many of the defendants interrogatories may, in substantial part, be derived or ascertained from the plaintiffs records as well as documents produced by the defendants in discovery. Pursuant to Fed. R. Civ. P. 33(d), as the burden of deriving or ascertaining the answer to such interrogatories from such records and documents is substantially the same for the defendants, the plaintiffs will respond to such interrogatories by identifying the documents and records from which the answer may be ascertained. Responsive documents and records in the plaintiffs possession are identified by bates number, and responsive documents and records produced by the defendants are identified by bates number and/or category description to the extent possible. To the extent that the defendants do not have in their possession such documents bearing identified bates numbers, the plaintiffs will make such bates-numbered documents available for the defendants inspection and copying at a mutually convenient time and place.

14.Unless otherwise indicated, the plaintiffs will not provide information encompassed by their general responses and objections or by their specific objections set forth below.

SPECIFIC OBJECTIONS AND Responses

Interrogatory No. 1

For each plaintiff, state his/her specific diagnosis concerning the plaintiffs behavioral, mental, or psychiatric condition at the time the complaint was filed.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows:

Pursuant to Fed. R. Civ. P. 33(d), and incorporating Specific Response and Objection No. 13 as though fully set forth herein, the Responding plaintiff hereby identifies the following documents and records from which the answer to this interrogatory may, in substantial part, be ascertained:

Defendants Documents

DMH0445501, DMH045511-17, DMH045392, DMH045467, DMH045463

Interrogatory No. 2

For each plaintiff, state his/her specific diagnosis concerning the plaintiffs current behavioral, mental, or psychiatric condition.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows: The Responding Plaintiff is currently diagnosed with severe Attention Deficit Hyperactivity Disorder and Bipolar Disorder.

Interrogatory No. 3

For each plaintiff, state what mental health or behavioral health services he/she is receiving from or through any State agency or any Managed Care Organization (MCO).

Response




DMH045418-DMH045444, DMH045522-25, and DMH045527-DMH045536, DMH045625.

Responding further, to the extent that the answer to this interrogatory may not be fully ascertained from the documents and records identified above, the Responding Plaintiff answers the remaining portion of the interrogatory as follows: the Responding Plaintiff currently receives psychiatric care from Dr. Janet Wozniak and family therapy with Dr. Byron Evans, both of whom are affiliated with Massachusetts General Hospital. The Responding Plaintiff also receives flexible support funding and a form of case management services from the Department of Mental Health.

Interrogatory No. 4

For each plaintiff, identify whether he/she has any private health insurance, and if so, please provide the following:

(i) the identity of the insurer;

(ii) policy number;

(iii) date(s) of the policy period;

(iv) whether the plaintiff has ever made a claim for reimbursement for any service relating to or concerning the diagnosis identified in interrogatory two above;

(v) the specific service(s) for which the plaintiff sought reimbursement;

(vi) the insurers response to said claim for reimbursement, for example, denied or approved, in whole or in part;

(vii) the basis for the insurers response; and

(viii) if the plaintiff received a specific mental health or behavioral health service and is not currently receiving that service, the reason that service(s) was terminated.

Response



Plaintiffs Documents

AB0474-76, AB0481-88, AB0522-23


DMA059103-07, DMA059116-18, DMA059232-DMA059249, DMA028043, DMA028056-DMA028062, DMH045441, DMH045492, DMH045638, MBHP015149

Responding further, to the extent that the answer to this interrogatory may not be fully ascertained from the documents and records identified above, the Responding Plaintiff answers the remaining portion of the interrogatory as follows: the Responding Plaintiff is now and at all relevant times has been eligible for Mass Health. In addition, the Responding Plaintiff received primary insurance coverage through Guardian HMO from approximately August 4, 1997 through June 14, 2003, plan number 00642830. The Responding Plaintiff currently receives primary insurance coverage through Tufts Health Plan, policy number 013429919-02.

Interrogatory No. 5

For each plaintiff identify (i) all mental health or behavioral health services that the plaintiff has received since January 1999, but that plaintiff is no longer receiving, and (ii) for all mental health or behavioral health services that the plaintiff received since January 1999, but is no longer receiving, explain why the services were terminated.

Response



Plaintiffs Records:

AB0386-AB0396, AB0523, AB0531-2, AB0448-AB0459

Defendants Documents:

DMH045386-7, SEQ CHAPTER \h \r 1DMH45392-DMH045405, DMH045418-DMH045445, DMH045446-48, DMH045485-DMH045487, DMH045534-DMH045537, DMH045539-DMH045541, DMH045573-DMH045588, DMH045624, DMH045628, DMH045631-35, DMH045528-DMH045559

Interrogatory No. 6

State with specificity exactly what services constitute or comprise intensive home-based services as referred to in the Complaint, Sec. 1 et seq., and for each component so identified, for each plaintiff state the following:

(i) whether the plaintiff is currently receiving said component part(s) from or through any State agency or MCO;

(ii) whether the plaintiff has ever sought any component part(s) as identified above from any State agency or MCO, and if so, its response thereto; and

(iii) if the plaintiffs request for any component part as identified above was denied by a State agency or MCO, whether the plaintiff pursued an administrative appeal and the results thereof.

Response


The Responding Plaintiff refers defendants to the Complaint, 49-51. Plaintiffs reserve the right to supplement this response to the extent it is further informed by documents and information produced in discovery and/or the opinion of experts retained by the parties to testify in the trial of this matter. The Responding Plaintiff answers the remainder of this interrogatory by stating that he currently receives some form of case management, and certain clinical and support therapies, but no other intensive home-based services, despite having sought additional treatment or support services to allow him to remain in the community.

The Responding Plaintiff further responds by stating that he has previously appealed insurance denials of Family Stabilization Team services following in-patient admissions at Franciscans Hospital in 2001 and 2002. He contested the reduction and eventual discontinuation of specialing services delivered by Brockton Multi Service Center and the lack of community social skills groups recommended within his Department of Metal Health, Individual Service Plan.

Pursuant to Fed. R. Civ. P. 33(d), and incorporating Specific Response and Objection 13 as though fully set forth herein, the Responding plaintiff also identifies the following documents and records from which the answer to this interrogatory may, in substantial part, be ascertained:

Plaintiffs Documents:

AB0387, AB0421, AB0425-6, AB522-AB0523, AB0531-2


DMH045386-7, DMH045418-DMH045443, DMH045446-48, DMH045530-32, DMH045535-37, DMH045392-DMH045406, DMH045485-87, DMH045533, DMH045585-86

Interrogatory No. 7

For each plaintiff, state whether he/she receives or at any time has received, intensive home-based services or any component thereof as identified in plaintiffs response to interrogatory number six, from or through the plaintiffs school district under an Individualized Education Plan or otherwise, If the answer is yes, please state:

(i) what intensive home-based service the plaintiff currently receives;

(ii) how long the plaintiff has been receiving these services;

(iii) whether the plaintiff has sought other or additional home-based services from the plaintiffs school district;

(iv) whether plaintiffs school district has ever denied a request for intensive home-based or any component thereof as identified by the plaintiffs to interrogatory number six, and if so, the reason provided for the denial; the services offered instead of intensive home-based services (if any) by the school district; and whether the plaintiff sought review of said denial before the Board of Special Education Appeals or any other State agency, and the results thereof; and

(v) if any intensive home-based services or any component of intensive home-based services as identified by the plaintiffs in response to paragraph six herein have been provided since January 1999, under an IEP, but are currently not provided, state why the service is no longer provided.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows: the Responding Plaintiff is not now receiving, nor has ever received, intensive home-based services through or from his school district pursuant to an IEP, other than certain clinical and support therapies which he has received for approximately three years.

Pursuant to Fed. R. Civ. P. 33(d), and incorporating Specific Response and

Objection 13 as though fully set forth herein, the Responding plaintiff hereby identifies the following documents and records from which the answer to this interrogatory may, in substantial part, be ascertained:


AB0456-AB0457


DMH045402, DMH045388, DMH045528, DMH045437-38, DMH045461, DMH045622, DMH045470-DMH045484

Interrogatory No. 8

For each plaintiff, state whether and when he/she sought or received a professionally acceptable assessment as referred to in the Complaint, Sec. 22, from or though any State agency, MCO, or Mass Health enrolled provider and the response thereto.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows: the Responding Plaintiff has not received a professionally acceptable assessment designed to determine the need for intensive home-based services.

Interrogatory No. 9

For each plaintiff, state whether and when he/she has sought or received special therapeutic aides as referred to in the Complaint, Sec. 22, from or through any State agency, MCO, or Mass Health enrolled provider and the response thereto.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows: the Responding Plaintiff has not received a special therapeutic aid designed to allow him to remain at home or in the community. However, the Responding Plaintiff has previously received limited specialing services through the Brockton Area Multi Services, Family Resource Mobilization Unit.

Pursuant to Fed. R. Civ. P. 33(d), and incorporating Specific Response and Objection 13 as though fully set forth herein, the Responding plaintiff hereby further identifies the following documents and records from which the answer to this interrogatory may, in substantial part, be ascertained:

Plaintiffs Documents

AB0387, AB0390-92


DMH045386, DMH045446-DMH045448

Interrogatory No. 10

For each plaintiff, state whether and when he/she has sought or received crisis intervention as referred to in the Complaint, Sec. 22, from or through any

State agency, MCO, or Mass Health enrolled provider and the response thereto.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows: the Responding Plaintiff has not sought or received crisis intervention services.


For each plaintiff, state whether and when he/she sought or received case management services as referred to in the Complaint, Sec. 22, from or through any State agency, MCO, or Mass Health enrolled provider and the response thereto.

Response




DMH045528-DMH045559

Interrogatory No. 11-A

For each plaintiff, please state each time the plaintiff was admitted for inpatient psychiatric hospitalization since January 1, 1999. For each plaintiff who was admitted for an inpatient psychiatric hospitalization, please state:

(i) the reason for the admission;

(ii) the length of each stay;

(iii) whether the plaintiff received any services from an Emergency Services Provider prior to the admission;

(iv) if the plaintiff was screened for an inpatient admission but was offered another service or treatment instead, the service or treatment that was offered and whether the offered service or treatment was accepted. If the offered service or treatment was rejected, the reason the plaintiff did not accept it;

(v) the plaintiffs disposition upon discharge;

(vi) for each plaintiff who was admitted to a hospital, whether he/she became unable to be discharged from the hospital due to the unavailability of appropriate placement, and if so, the length of time before an appropriate placement was found; and

(vii) for each plaintiff who was admitted to a hospital and was unable to be discharged due to the unavailability of appropriate placement, state what placement was offered to the plaintiff and if rejected, the reason for his/her rejection.

Response

Subject to and without waiving the General Responses and Objections set forth above, the Responding Plaintiff answers this interrogatory as follows: the Responding Plaintiff has experienced three in-patient hospitalizations between the year 2000 and 2002. The Responding Plaintiffs most recent hospitalization occurred at Franciscan Childrens hospital in May, 2002.



AB0001-AB0384, AB0468-AB0473, AB0499-520, AB0521-AB0543


DMH045500-DMH045510, DMH045511-17


Please identify the specific policies, practices and procedures which the plaintiffs allege prevents them from being considered for or provided with intensive home-based services alleged in the Complaint, paragraph 25.

Response

The Responding Plaintiff objects to this interrogatory as an improper and premature contention interrogatory and hereby incorporates General Response and Objection No. 11 as though fully set forth herein.

Answering further, and subject to the specific objection and the General Responses and Objections above, the Responding Plaintiff states the following based on the current state of his/her knowledge, belief, and understanding:

1. The specific policies, practices, and procedures which the plaintiffs allege prevents them from being considered for or provided with intensive home-based series alleged in the Complaint, 25 include but are not necessarily limited to:

2. The service descriptions, eligibility criteria, and other limitations on community services in programs such as FST, CSP and FASST;

3. Geographical limitations on programs like MHSPY and CFFC;

4. Lack of screening, evaluation, and referral protocols for intensive home-based services, community therapeutic activities, and after school support services;

5. Lack of comprehensive assessments for intensive home-based services, community therapeutic activities, and after school support services;

6. Lack of recruitment, training, and supervision of staff to provide intensive home-based services, community therapeutic activities, and after school support services;

7. Lack of information to recipients, parents, caretakers, and clinicians concerning intensive home-based services, community therapeutic activities, and after school support services;

8. Lack of processes, protocols, policies, and procedures for intensive home-based services, community therapeutic activities, and after school support services;

9. Lack of funding for intensive home-based services, community therapeutic activities, and after school support services;

10. 9. Lack of billing codes and payment mechanisms for intensive home-based services, community therapeutic activities, and after school support services; and,

11. Lack of monitoring and oversight of intensive home-based services,

community therapeutic activities, and after school support services.


Please identify by name or by statutory reference the individual states which

provide or arrange for behavioral support staff for as long as necessary and for as many hours each day as necessary to treat or ameliorate the childs behavioral, emotional, or psychiatric needs, as alleged in the Complaint, paragraph 49.

Response



The individual states which provide or arrange for behavioral support staff for as long as necessary and for as many hours each day as necessary to treat or ameliorate the childs behavioral, emotional, or psychiatric needs, as alleged in the Complaint, 49 include, but are not limited to, Pennsylvania, California, Connecticut, Maine, Nebraska, New Jersey, New Mexico, North Dakota, Vermont, West Virginia, Wisconsin, Rhode Island, North Carolina and Michigan.


Please identify the statutory or regulatory bases for the plaintiffs claim that

intensive, home-based services include, crisis services [which] must be available to

come to the home and offer clinically intensive interventions in the event of a mental

health crisis which places the child at risk of hospitalization. Complaint, 51.

Response



The statutory or regulatory bases for the plaintiffs claim that intensive home-based services include crisis services [which] must be available to come to the home and offer clinically intensive interventions in the event of a mental health crisis which places the child at risk of hospitalization. include 42 U.S.C. 1396a (a) (13); 42 U.S.C. 1396a (a) (43)(C); 42 U.S.C. 1396d(a); and 42 CFR 441.57.


Please state with specificity the manner in which by design Family Stabilization Teams and Community Support Programs are unavailable, insufficient, or unsuitable for children who need so-called intensive home-based services. Complaint, 52.

Response



By design Family Stabilization Teams and community support programs are unavailable, insufficient, and unsuitable for children who need so-called intensive home-based services Complaint, 52. in that FST and CSP are, by design, of a limited intensity, duration, and capacity. As set forth in the Massachusetts Behavioral Health Partnerships provider manual, they are short-term services and primarily available to children leaving hospitals or at risk of hospitalization. Therefore, they are inadequate for children who have a medical necessity for long-term, intensive home-based services, behavioral specialists, community therapeutic activities, and after school supports.


Please identify the specific DMH proposals to expand intensive home-based services referred to in the Complaint, 64, and for each proposal so

identified, state with specificity the basis for the plaintiffs claim that the proposals to consider expanding home-based services from an isolated pilot program in Cambridge-Somerville to a state-wide Medicaid-funded initiative have gone unheeded.

Response



1. The specific DMH proposals to expand intensive home-based services, referred to in the Complaint, 64, and/or each proposal so identified, state with specificity the basis for the plaintiffs claim that the proposals to consider expanding home-based services, from an isolated pilot program in Cambridge-Somerville to a state-wide Medicaidfunded initiative, have gone unheeded. include:

2. DMH actually participated in the planning to expand MHSPY in 2000-2001 that did not result in increased capacity to provide home-based services;

3. DMH participated in planning to create alternatives to MHSPY, including CFFC, but this did not result in state-wide program; and,

DMH developed plans to expand FASST and CSP, but these did not result in increased capacity to provide home-based services.


For each plaintiff, please state whether any medical doctor or other medical health professional has ever stated in writing that he/she requires around-the-clock, home-based services as alleged in the Complaint, Sec. 69. If so, please identify the following:

(i) the name and business address of the medical doctor or other medical health professional;

(ii) whether this writing (or diagnosis) was ever provided to any State agency of MCO in the form of a request for this specific service, and if so, the date thereof; and

(iii) the State agencys or MCOs response thereto

Response




DMH045446-DMH045448 and DMH045519-DMH045521


Please identify the specific arbitrary and unreasonable administrative funding decisions made by the defendants, which the plaintiffs allege have resulted or caused the improper limitation on the availability of intensive home-based services. Complaint 124(g).

Response



1. The specific arbitrary and unreasonable administrative funding decisions made by the defendants, which the plaintiffs allege have resulted or caused the improper limitation on the availability of intensive home-based services. Complaint, 124(g) include:

2. The decision to limit the duration, intensity and capacity of FST and CSP;

3. The decision not to substantially expand MHSPY;

4. The decision to limit CFFC to six locations;

5. The decision not to include intensive home-based services, behavioral specialists, community therapeutic activities and after school support services in the Medicaid State Plan or Rehabilitation Plan or waiver;

6. The decision not to invest in intensive home-based services and to instead invest in costly in-patient hospitalization, and residential programs;

7. The decision to effectively deny the children with the greatest need, the opportunity to remain with their families and to receive the behavioral health services they need; and,

8. The decision not to continue with pre-filing settlement discussions on the design and structure of a statewide home-based services model.

VERIFICATION

On behalf Anton Branch, and in my capacity as his parent and guardian, I have read the foregoing Responses, which are based on a diligent and reasonable effort by me to obtain information currently available. I reserve the right to make changes in or additions to any of these answers if it appears at any time that errors or omissions have been made or if more accurate or complete information becomes available. Subject to these limitations, these Responses are true to the best of my present knowledge, information, and belief.

Subscribed and sworn to under the pains and penalties of perjury this ___ day of December, 2003.

________________________________

Anton Branch

By: Lisa Alintuck, parent

As to Objections:

__________________________________

James C. Burling (BBO#065960)

James W. Prendergast (BBO#553073)

John S. Rhee (BBO#650139)

Hale and Dorr, LLP

60 State Street

Boston, MA 02109

(617) 526-6000

Steven J. Schwartz (BBO#448440)

Cathy E. Costanzo (BBO#553813)

Center for Public Representation

22 Green Street

Northampton, MA 01060

(413) 586-6024

Frank Laski (BBO#287560)

Mental Health Legal Advisors Committee

294 Washington Street

Boston, MA 01208

(617) 338-2345

Dated: December __, 2003

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon all counsel of record by first-class mail on December ___, 2003.

_______________________

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