Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA ROY FERRAND, LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, Civil Action No. 2:11-cv-926 JTM-JCW Section H v. Plaintiffs TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND PROPOSED INJUNCTIVE RELIEF BY DEFENDANT BRUCE D. GREENSTEIN Defendant Bruce D. Greenstein, in his official capacity as Secretary of the Louisiana Department of Health and Hospitals, submits the following Findings of Fact and Conclusions of Law and Proposed Injunctive Relief: PROPOSED FINDINGS OF FACT A. Plaintiffs Standing 1. Luther Scott, Jr. has never applied for or received services or assistance from DHH. [Luther Scott, Jr.] 2. The Louisiana State Conference of the NAACP has never conducted a voter registration drive. [Ernest Johnson] 3. The Louisiana State Conference of the NAACP does not possess any records to support their claim that they have expended any money or resources on voter registration 1

2 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 2 of 10 activities. [Ernest Johnson and/or Edward Taylor; no such requested records produced in discovery] 4. The Louisiana State Conference of the NAACP has never expended any money or resources on voter registration efforts. [Ernest Johnson] 5. The Louisiana State Conference of the NAACP has never targeted any voter registration efforts towards applicants or recipients of services or assistance from DHH. [Ernest Johnson] 6. The Louisiana State Conference of the NAACP has never expended any money or resources for the purpose of counteracting any failure of DHH to fully comply with the NVRA. [Ernest Johnson] 7. The Louisiana State Conference of the NAACP does not have any individual (i.e. natural person) members. [Ernest Johnson] 8. Ernest Johnson has been the president of the Louisiana State Conference of the NAACP since [Ernest Johnson] 9. Edward W. Taylor III is not the director of voter registration drives for the Louisiana State Conference of the NAACP because no such position or office exists within that organization. [Ernest Johnson] B. Compliance GENERAL 1. DHH Medicaid and Women, Infants & Children Program (WIC) personnel who interact with individuals seeking to apply for, renew, or change their address concerning services or benefits first began receiving training on the provisions and requirements of the NVRA shortly after its enactment. [Diane Batts and Denise Harris] 2. Through employee training, directives, and handbooks, DHH has mandated and instructed that its Medicaid and WIC employees comply with the provisions and requirements of the NVRA since its enactment. [Diane Batts and Denise Harris] 3. Since the enactment of the NVRA, DHH has made good faith efforts to comply substantially with the NVRA and has never taken the position that compliance was not 2

3 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 3 of 10 required in connection with its administration of the Medicaid and WIC programs. [Diane Batts and Denise Harris] 4. Since the filing of this suit, DHH has enacted, in good faith, new measures and procedures designed to address all instances/methods of non-compliance with the NVRA alleged by Plaintiffs. [Diane Batts and Denise Harris; DHH Exhibits 1-11,14-16 ] MEDICAID 5. Defendant Greenstein did not offer voter registration during remote transactions prior to July [Diane Batts] 6. In the spring of 2011 DHH began the process of revising its Medicaid policy(s) to require NVRA compliance for all remote transactions. [Diane Batts] 7. In the spring of 2011, the DHH Medicaid Eligibility section arranged for the La. Secretary of State to provide updated NVRA training to all Medicaid Eligibility personnel in the state. Said statewide training was provided on April 13, 2011, and Medicaid Eligibility personnel who were sick or absent on that date received the same or equivalent updated training upon their return to work. [Diane Batts] 8. On May 26, 2011, DHH Secretary Bruce Greenstein disseminated to all DHH Medicaid Eligibility employees and contractors a Directive mandating that, consistent with then existing DHH Medicaid policy, each in-person applicant for service or assistance, recertification, renewal, or change of address must be offered: i) a mail voter registration application form; ii) a voter preference/declaration form; and iii) assistance in completing the mail voter registration application form equivalent to the assistance given to persons when completing DHH Medicaid s own forms. Said Directive also mandated that Medicaid employees and contractors accept and remit to appropriate election officials, within the time limits provided by the NVRA, completed mail voter registration application forms. Said Directive expressly mentioned that the mandates imposed therein were issued under penalty of disciplinary action or contract termination. [Diane Batts; DHH Exhibit 6] 9. On July 27, 2011, DHH revised its Medicaid NVRA policy, applicable to DHH Medicaid employees and contractors, to expressly require compliance with NRVA-related mandates for all applications, renewals, and changes of address, whether conducted inperson or remotely. [Diane Batts; DHH Exhibit 7] 3

4 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 4 of The revised Medicaid NVRA policy enacted on July 27, 2011 fully implemented, as of August 15, 2011, the following procedures, inter alia, now followed by all DHH Medicaid Eligibility employees and contractors: a. A mail voter registration application form (meeting the requirements of 42 U.S.C. 1973gg-7(a)(2)) and a preference/declaration form (meeting the requirements of 42 U.S.C. 1973gg-5(a)(6)(B)) are attached to and included with all Medicaid application and renewal forms, both hard copy and online versions. b. For in-person transactions, individuals seeking to apply, renew or change their address with respect to Medicaid services receive a mail voter registration application form and a preference/declaration form, and assistance in completing the mail voter registration application form, unless refused. Completed mail voter registration application forms are forwarded by DHH to the appropriate parish Registrar of Voters within two business days of receipt. c. For mail-in transactions, individuals seeking to apply for or renew Medicaid services utilize either: i) pre-printed applications that have mail voter registration application and preference/declaration forms attached, or ii) extant older preprinted applications that do not have such forms attached. For applications/renewals received by Medicaid on the older forms, a mail voter registration application form and a preference/declaration form are mailed to the applicant with the applicant s decision notice. Completed mail voter registration application forms are forwarded by DHH to the appropriate parish Registrar of Voters within two business days of receipt. DHH does not offer or use a mail-in change of address form. d. For online transactions, individuals seeking to apply, renew or change their address with respect to Medicaid services are presented with an on-screen version of the preference/declaration form and, upon clicking/checking the yes box contained therein, are presented with three options: i) a link to register online at ii) a link/button to download and print the mail voter registration application, and iii) a link/button to request a copy of the mail voter registration application from DHH by mail. e. For telephone transactions, individuals seeking to apply for or renew Medicaid services are mailed a mail voter registration application form and preference/declaration form with their decision notices. Individuals seeking to change their address are asked if they would like to register to vote, and those 4

5 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 5 of 10 who indicate yes are offered the option of registering at or having DHH mail to them a mail voter registration application form. [Diane Batts; DHH Exhibit 7] 11. DHH Medicaid personnel provide the same degree of assistance to clients/applicants with regard to the completion of voter registration forms as they provide with regard to the completion of Medicaid-specific forms. [Diane Batts; DHH Exhibit 7] 12. The Medicaid NVRA policy enacted on July 27, 2011 incorporates NVRA training into DHH s online Medicaid Learning Management System ( MLMS ), and requires that all new employees receive NVRA training within 60 days of employment (revised to 30 days in a subsequent policy revision dated 2/27/2012). The July 27, 2011 policy also mandates that existing employees retake the online NVRA training annually, and the MLMS system allows tracking and reporting of employees who have not completed such training. [Diane Batts; DHH Exhibit 7] WIC 13. Applications and renewals for WIC services are conducted exclusively in-person. Changes of address for WIC services are conducted almost exclusively in-person, but could be conducted via telephone in very rare instances. [Denise Harris] 14. Since 2006, all WIC applications, renewals, and changes of address have been implemented via a paperless computerized system known as PHAME (The Public Health Automated Management Enabler System). [Denise Harris; DHH Exhibit 12] 15. Since at least 2009, all new WIC personnel have received training on WIC s required NVRA-related procedures, as outlined in Chap. 23 ( Voter Registration ) of the DHH WIC Policy Manual, which was enacted in [Denise Harris; DHH Exhibit 15] 16. The version of Chap. 23 ( Voter Registration ) of the DHH WIC Policy Manual enacted in 2004 mandates, inter alia, that The WIC program staff will offer and provide assistance in completing the application to register to vote to applicants/participants who are eligible to vote. [Denise Harris; DHH Exhibit 15] 17. On May 25, 2011 DHH Executive Counsel Stephen Russo, on behalf of DHH Secretary Bruce Greenstein, disseminated to all DHH WIC employees and contractors a Directive mandating, inter alia, compliance with the mandates of Chap. 23 ( Voter Registration ) of the DHH WIC Policy Manual. Said Directive expressly mentioned that the mandates 5

6 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 6 of 10 imposed therein were issued under penalty of disciplinary action or contract termination. [Denise Harris; DHH Exhibit 10] 18. On August 1, 2011 DHH Executive Counsel Stephen Russo, on behalf of DHH Secretary Bruce Greenstein, disseminated an additional Directive to all DHH WIC employees and contractors. Said Directive mandated, inter alia and in addition to all other requirements of Chap. 23 of the DHH WIC Policy Manual, that each person who applies for WIC certification, recertification, or change of address must be asked to complete and sign a Voter Registration Declaration Statement [a preference/declaration form meeting the requirements of 42 U.S.C. 1973gg-5(a)(6)(B)] and must be given or offered a Voter Registration Form [LR-1M issued by the Louisiana Secretary of State; a mail voter registration application form meeting the requirements of 42 U.S.C. 1973gg-7(a)(2)] regardless of their response, or lack thereof, on the Voter Registration Declaration Statement. Said Directive expressly mentioned that the mandates imposed therein were issued under penalty of disciplinary action or contract termination. [Denise Harris; DHH Exhibit 11] 19. Mandatory training concerning the August 1, 2011 Directive issued by DHH Executive Counsel Stephen Russo was provided to all WIC personnel, employees and contractors during the month of August, [Denise Harris] 20. Prior to issuance of the August 1, 2011 Directive issued by DHH Executive Counsel Stephen Russo, WIC did not utilize a paper Voter Registration Declaration Statement, but instead utilized an on-screen equivalent thereof built into the PHAME system. [Denise Harris] 21. Prior to issuance of the August 1, 2011 Directive issued by DHH Executive Counsel Stephen Russo, WIC did not give or offer a Voter Registration Form in connection with an application, renewal, or change of address unless the applicant indicated, in connection with the question asked pursuant to the on-screen equivalent of the Voter Registration Declaration Statement question, that s/he did wish to register to vote. [Denise Harris] 22. DHH WIC personnel, employees, and contractors have complied with the August 1, 2011 Directive issued by DHH Executive Counsel Stephen Russo since its issuance. [Denise Harris] 23. On April 23, 2012, DHH enacted a revised version of Chap. 23 ( Voter Registration ) of the DHH WIC Policy Manual, applicable to DHH Medicaid personnel, employees and contractors. Said revised policy, which, inter alia, incorporates the mandates of the 6

7 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 7 of 10 August 1, 2011 Directive issued by DHH Executive Counsel Stephen Russo, is consistent with and implements all relevant mandates of the NVRA, including, but not limited to: a. Distributing or offering a mail voter registration application form meeting the requirements of 42 U.S.C. 1973gg-7(a)(2) and a preference/declaration form meeting the requirements of 42 U.S.C. 1973gg-5(a)(6)(B) in connection with each application for service or assistance, and with each recertification, renewal, or change of address. b. Offering/providing the same level of assistance in completing said forms as is offered/provided to persons when completing DHH WIC s own forms. c. Mailing received completed mail voter registration application forms to the appropriate parish Registrar of Voters within two business days of receipt. [Denise Harris; DHH Exhibit 15] PROPOSED CONCLUSIONS OF LAW 1. Luther Scott, Jr. has no standing to assert claims under the NVRA against Defendant Greenstein. [42 U.S.C. 1973gg-9] 2. The Louisiana State Conference of the NAACP has no standing to assert claims under the NVRA against Defendant Greenstein. [42 U.S.C. 1973gg-9; Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. #2130, 119 L.Ed.2d 351 (1992); ACORN v. Fowler, 178 F.3d 350, 360 (5 Cir. 1999)] 3. Prior to August 15, 2011, DHH was not in full compliance with the mandates of the NVRA as interpreted by Plaintiffs and/or the rulings issued by the court in this case. [Case 2:11-cv JTM-JCW Document 212, Order and Reasons by Honorable Jane Triche Milazzo denying Defendants Motion for Summary Judgment] 4. Since no later than August 15, 2011, DHH Medicaid and WIC policies, practices, and procedures have been in substantial compliance with the mandates of the NVRA. 5. Plaintiffs, to the extent they might have standing, have not met their burden of proof as to claimed violations by Defendant Greenstein of the NVRA and, accordingly, their demands for declaratory and injunctive relief fail as a matter of law. 7

8 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 8 of 10 PROPOSED INJUNCTIVE RELIEF Pursuant to the Court s pre-trial conference directive, but without waiving their respective defenses or objections to any claims asserted by plaintiffs or to the Court s ruling(s) in this case, the Secretaries of the Departments of Health and Hospitals and of Children and Family Services, respectfully offer the following language for inclusion in any judgment or order rendered by this Honorable Court: 1. As to the Secretary of the Department of Health and Hospitals: The Secretary of the Department is directed to maintain in force and effect his/her policies, procedures and directives, as revised, relative to the implementation of the National Voter Registration Act with respect to the Medicaid and WIC programs under this or her administration. 2. As to the Secretaries of Both Departments: The Court finds, as a matter of law, that the Secretaries of each Department are in substantial compliance, or are making extensive good faith efforts to comply, with the National Voter Registration Act as to the programs under their respective administration. Accordingly, the Court will not require monitoring or further reporting, or exercise continuing jurisdiction over this case. 8

9 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 9 of 10 Respectfully Submitted, /s/ Rebecca C. Clement Douglas L. Cade, T.A. (22747) Rebecca C. Clement (31665) Stephen R. Russo (23284) Kimberly L. Humbles (24465) David L. McCay (23527) Louisiana Department of Health and Hospitals 628 N. 4 th Street P. O. Box 3836 Baton Rouge, LA Telephone: (225) Facsimile: (225) Douglas.Cade@La.Gov Rebecca.Clement@La.Gov. Stephen.Russo@La.Gov Kimberly.Humbles@La.Gov David.McCay@La.Gov Attorneys for Defendant, Bruce D. Greenstein, in his official capacity as the Secretary of the Louisiana Department of Health and Hospitals 9

10 Case 2:11-cv JTM-JCW Document 375 Filed 10/05/12 Page 10 of 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing Proposed Findings of Fact and Conclusions of Law and Proposed Injunctive Relief by Defendant Bruce D. Greenstein was filed with the Clerk of Court using the CM/ECF system, which will send notifications of such filing to all parties in this matter via electronic notification or otherwise. Baton Rouge, Louisiana, this 5 th day of October, /s/ Rebecca C. Clement Rebecca C. Clement 10