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James and Lorie Jensen, As Parents, Guardians and Next Friends of Bradley J. Jensen; James v. Minnesota Department of Human Services

April 25, 2013

JAMES AND LORIE JENSEN, AS PARENTS, GUARDIANS AND NEXT FRIENDS OF BRADLEY J. JENSEN; JAMES BRINKER AND DARREN ALLEN, AS PARENTS, GUARDIANS AND NEXT FRIENDS OF THOMAS M. ALLBRINK; ELIZABETH JACOBS, AS PARENT, GUARDIAN AND NEXT FRIEND OF JASON R. JACOBS; AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MINNESOTA DEPARTMENT OF HUMAN SERVICES, AN AGENCY OF THE STATE OF MINNESOTA; DIRECTOR, MINNESOTA EXTENDED TREATMENT OPTIONS, A PROGRAM OF THE MINNESOTA DEPARTMENT OF HUMAN SERVICES, AN AGENCY OF THE STATE OF MINNESOTA; CLINICAL DIRECTOR, THE MINNESOTA EXTENDED TREATMENT OPTIONS, A PROGRAM OF THE MINNESOTA DEPARTMENT OF HUMAN SERVICES, AN AGENCY OF THE STATE OF MINNESOTA; DOUGLAS BRATVOLD, INDIVIDUALLY, AND AS DIRECTOR OF THE MINNESOTA EXTENDED TREATMENT OPTIONS, A PROGRAM OF THE MINNESOTA DEPARTMENT OF HUMAN SERVICES, AN AGENCY OF THE STATE OF MINNESOTA; SCOTT TENNAPEL, INDIVIDUALLY AND AS CLINICAL DIRECTOR OF THE MINNESOTA EXTENDED TREATMENT OPTIONS, A PROGRAM OF THE MINNESOTA DEPARTMENT OF HUMAN SERVICES, AN AGENCY OF THE STATE OF MINNESOTA; AND STATE OF MINNESOTA, DEFENDANTS.



AMENDED ORDER AND MEMORANDUM

The above-entitled matter was last before this Court on March 25, 2013, for a status conference. David Ferleger, the Court's independent advisor and monitor (the "Monitor") was not in attendance at that status conference. Prior to the status conference, the Court filed an Order and Memorandum dated March 19, 2013 ("March 19 Order"). (Doc. No. 205.)

As the Court noted in its March 19 Order and in a January 9, 2013 letter to the parties in response to the agenda that the Court had received and reviewed for the January the Court parties to utilize their best efforts to develop an implementation plan that would include

14, 2013 meeting of all of the parties with the Monitor, urged the

tasks, deadlines, persons responsible, and possible amendments to extend the jurisdiction of the Court for an additional period of time, consistent with the discussions that occurred at the December 11, 2012 status conference. (Doc. No. 192.) The Court stressed that the parties should utilize their best efforts to develop and agree on the Monitor's role as well as the budgetary implications of that role. (Id.) The Court also offered, in its letter, to get together with the parties if the parties felt that a follow-up status conference would be in everyone's best interests. (Id.) Then, on January 23, 2013, the Court sent a follow-up letter, respectfully directing the parties to send a report to the Court as to the status of the case and how to move forward, including any agreements that they anticipated or had reached. (Doc. No. 196.) The Court specifically directed and invited Steven Alpert, Shamus O'Meara, Colleen Wieck, Ph.D., Executive Director of the Minnesota Governor's Council on Developmental Disabilities, and Roberta Opheim, Ombudsman, Office of the Ombudsman for Mental Health and Developmental Disabilities, to make any recommendations or observations about the current status of the case, with or without proposals, including issues of compliance and noncompliance with the Settlement Agreement. (Id.) At the request of counsel for Plaintiffs and counsel for Defendants, the Court met with the parties on January 24, 2013. The Monitor was not in attendance.

Much has happened and continues to happen, not only since December 11, 2012, but since the Court's March 19 Order and the status conference held on March 25, 2013. Executive Order 13-01, signed by Governor Mark Dayton, was filed on January 28, 2013. The Court notes that, although an Executive Order was filed four days after counsel met with the Court, there was no discussion of it with the Court by any of the parties prior to its entry, and there has been no explanation since its entry as to its relationship to, or its impact on, the Settlement Agreement, if any. The Executive Order purports to address Olmstead issues, which means that the issuance of the order must have been discussed sometime prior to January 28, 2013, with a number of individuals and departments, including the Minnesota Department of Human Services ("DHS"), as well as perhaps Plaintiffs' counsel.

On January 29, 2013, the day after the issuance of the Executive Order, the Court received a letter from Plaintiffs' counsel, which addressed not only the Monitor's role and Plaintiffs' recommendations for a change in procedural protocol to include quarterly reports, but also recommended that monthly meetings with the Monitor be discontinued as unnecessary. In response to the January 29, 2013 letter from Plaintiffs' counsel, the Court received a letter dated January 30, 2013, bearing the signature of Steven Alpert, which objected to Plaintiffs' proposal as it related to the Monitor's role. The Court was then provided with an order drafted by the Monitor entitled "Correction Order," dated February 1, 2013, which involved a November 27-30, 2012 licensing review of the Minnesota Specialty Health System at Cambridge, the purpose of which was to determine its compliance or noncompliance with state and federal laws and rules governing the provision of residential services to persons with developmental disabilities, including not only Minnesota Chapter 245B, but also the licensing variance, effective January 3, 2012. The Court received a stipulation of the parties, dated February 4, 2013, and a proposed order, on or about February 19, 2013, which adopted in substantial part, the parties' stipulation.

In addition to the parties' submissions, the Court received the Monitor's response to the Court's January 23, 2013 letter referenced above. The Court also received a letter from Deputy Commissioner Ann Barry dated February 19, 2013, which not only asserted compliance with the parties' Settlement Agreement, but also addressed budgetary issues with respect to the Monitor's role as well as objections to his most recent invoice (which the Court addressed in a separate order). On February 22, 2013, the Court received a Preliminary Report on Client and Staff Safety from the Monitor. Then, on February 24, 2013, the Court received a letter from Plaintiffs' counsel asserting that they did not concede that the stipulation represented the parties' view of compliance with the Settlement Agreement. The Court received a request on March 4, 2013, from Plaintiffs' counsel to schedule a conference with the Court to discuss resolution of Plaintiffs' Motion to Enforce Settlement, as well as the status of the case. At that time, the Court was informed that counsel for Defendants also agreed to scheduling a conference to discuss the status of Plaintiffs' Motion to Enforce Settlement. At the March 25, 2013 status conference, the Court agreed to issue an order addressing the role of the Monitor and to set up a process to promote substantial compliance with the Settlement Agreement entered in this case on December 1, 2011.

Finally, the Court has learned there is an omnibus DHS bill moving through the state legislature. Surprisingly to this Court, and without explanation or notice to the Court as to its relationship to the Settlement Agreement, it appears that DHS has proposed a ban on all restraint and seclusion, EXCEPT for individuals with developmental disabilities. Of additional concern in the same bill, there is a proposal to gather data about emergency use of retraint and seclusion, but rather than release it simultaneously to DHS and the Ombudsman's Office, it will be reviewed first by DHS.

Based upon the presentations and submissions of the parties, prior to the March 25, 2013 status conference and since that time, including the submissions of the Monitor, and given the continued concern of this Court relating to the status of the case and ongoing concerns with noncompliance with the Settlement Agreement of the parties, the Court having again reviewed the procedural history of this case, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:

ORDER

1. Role of David Ferleger

The external reviewer function, as set forth in the Stipulated Class Action Settlement Agreement at paragraph VII.B (External Reviewer) will be subsumed within the Monitor's role as originally set forth in the Court's July 17, 2012 Order, at which time the Court appointed David Ferleger as the Court's independent consultant and monitor.

2. Monitor's Investigation and Reports

The Monitor will independently investigate, verify, and report on compliance with the Settlement Agreement and the policies set forth therein on a quarterly basis. Those quarterly reports shall inform the Court and the parties whether the Monitor believes, based upon his investigation, without relying on the conclusion of the DHS, that Defendants are in substantial compliance with the Settlement Agreement and the policies set forth ...


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