United States District Court, D. Minnesota
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,
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 the State of Minnesota, Defendants.
Mark R. Azman, Esq., and Shamus P. O'Meara, Esq., O'Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.
Aaron Winter, Scott H. Ikeda, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for State Defendants.
Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq. Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
DONOVAN W. FRANK, District Judge.
Before the Court are the Court Monitor's Report to the Court: Community Compliance Review (" Community Compliance Review ") (Doc. No. 327), the Minnesota Department of Human Services' ("DHS") Response to the Community Review (Doc. No. 324), the Plaintiff Class' Response to the Community Review (Doc. No. 332), and the DHS' Reply to the Plaintiff Class' Response to the Community Review (Doc. No. 338). Also before the Court is the Plaintiff Class' request for sanctions (Doc. No. 230), left unresolved in the Court's December 17, 2013 Order (Doc. No. 259). The Court's December 17, 2013 Order reserved the issue of additional sanctions pending review and scrutiny of Defendants' compliance with the existing Orders of the Court, including the implementation plan required pursuant to the Court's August 28, 2013 Order (Doc. No. 224), as well as the Stipulated Class Action Settlement Agreement ("Settlement Agreement") (Doc. No. 104), which was approved and adopted by the Court in its December 5, 2011 Order (Doc. No. 136).
While asserting progress and promising improvements, the DHS does not contest the Court Monitor's findings of non-compliance with regard to adequacy of care and planning for clients who have moved from the Minnesota Extended Treatment Option ("METO") or Minnesota Specialty Health Systems ("MSHS")-Cambridge facilities into the community. ( See Doc. No. 324 at 1.) The DHS identifies those assessments with which it agrees as follows:
When [ ] clients are placed in community settings via county case managers or licensed providers, the transition plans are often not being adhered to. Furthermore, county staff have not been adequately trained in person centered planning and many county staff are unfamiliar with the Jensen Settlement Agreement and Minnesota's Olmstead Plan. Finally, the Court Monitor has suggested that DHS has not provided adequate oversight of counties with regard to the use of person-centered planning concepts, as well as transition plans and both of these are neither created nor used by county staff.
( Id. )
The Plaintiff Class also accepts the Court Monitor's findings of non-compliance and requests the Court "to direct DHS compliance on transition and person-centered support and services." (Doc. No. 332 at 1-2.) The Plaintiff Class argues that "we are now faced with continuing, fundamental non-compliance by DHS with important aspects of the Settlement as bluntly set forth by the Court Monitor in his Community Compliance Review." ( Id. ) The Plaintiff Class requests the Court to do the following: (1) require "[i]mmediate remedial action" requiring "a comprehensive person-centered planning process for all affected class members which should include the counties being held accountable"; (2) "consider extending its jurisdiction over the Settlement by a sufficient time period to ensure sufficient compliance"; and (3) "consider converting the status of the Court Monitor to a Special Master for the transition and person-centered compliance areas of the Settlement." (Doc. No. 332 at 8.)
In addition, the Plaintiff Class expresses its concern regarding the current status and lack of progress with the State's Olmstead Plan. ( Id. at 10.) Specifically, the Plaintiff Class observes that despite efforts to correct what it refers to as "DHS Olmstead Plan misdirection and delay, " important issues remain, requiring recommitment and focus to complete and implement an Olmstead Plan with measurable goals and meaningful transitional services that are truly centered on the person, rather than driven by the DHS. ( Id. ) In addressing these issues, the Plaintiff Class requests that the DHS begin to listen to and act on suggestions expressed by individuals such as Dr. Colleen Wieck, Executive Director, Minnesota Governor's Council on Developmental Disabilities, and Roberta Opheim, Ombudsman, Office of the Ombudsman for Mental Health and Developmental Disabilities. ( See, e.g., Doc. No. 274, Dr. Colleen Wieck's Feb. 18, 2014 Comments Regarding the Olmstead Plan; Doc. No. 275, Roberta Opheim's Feb. 21, 2014 Comments Regarding the Olmstead Plan.)
From the outset, based on the Settlement Agreement's mandates, the Court has emphasized the dual nature of Defendants' obligations: (1) protection of individuals while they live in an institution; and (2) assurance of transition to quality care in the community. Nonetheless, the DHS has repeatedly failed to comply with these obligations. ( See, e.g., Doc. No. 223 at 10; Doc. No. 159 at 12-13.) Whether this failure is due to the breadth of the necessary system changes, including training, coordinating, and holding accountable the State's eighty-seven counties, or the DHS' lack of a full-fledged Jensen oversight office until mandated in the Comprehensive Plan of Action (Doc. No. 283), or the DHS' indifference to or intentional non-compliance with the Settlement Agreement and related Orders of the Court (Doc. No. 259 at 5; Doc. No. 251 at 3), the Court respectfully directs the DHS to comply with the terms of the Court's Orders.
The Court has expressed its concern with non-compliance on prior occasions. In its August 28, 2013 Order, the Court identified community integration as a particular concern regarding non-compliance: "The Court deems this an opportune and appropriate time to consider the pace of Defendants' implementation of the obligations they undertook both as to the facility and system-wide, including but not limited to community integration under Olmstead v. L.C. " (Doc. No. 224 at 10.) The Court also expressed its concern ...