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Jensen v. Minnesota Department of Human Services

United States District Court, D. Minnesota

June 17, 2019

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.

          Shamus P. O'Meara, Esq., and Mark R. Azman, Esq., O'Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

          Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard Assistant Attorneys General, Minnesota Attorney General's Office, counsel for State Defendants.




         A Status Conference was held on April 16, 2019 to receive updates on the Jensen Stipulated Class Action Settlement Agreement (Doc. No. 136-1), the Second Amended Comprehensive Plan of Action (Doc. Nos. 283, 284), and the Olmstead Plan (Doc. Nos. 510, 521). (Doc. No.734.) As discussed below, the Court has determined that investigation and review is required on several compliance issues before the Court can equitably end its jurisdiction over this matter.


         Nearly ten years ago, on July 10, 2009, Plaintiffs filed a Complaint[1] against Defendants asserting multiple violations of federal and state law arising out of allegations of “abusive, inhumane, cruel, and improper use of seclusion and mechanical restraints routinely imposed upon [residents][2] of the Minnesota Extended Treatment Options program (METO).” (Doc. No. 1 at 2.) Following extensive negotiations, the parties entered into a Stipulated Class Action Settlement Agreement, which was approved by the Court on December 5, 2011. (See Doc. Nos. 104, 136.)

         The Stipulated Class Action Settlement Agreement provided for the closure of the METO facility, established requirements regarding restraint and seclusion at successor facilities, and established requirements for the Department of Human Services (“DHS”) to internally and externally monitor restraint use. (See Doc. No. 136-1 (“Settlement Agreement”) at 6-13.) The Settlement Agreement also provided that the State shall exercise “best efforts” for appropriate discharge of residents to the most integrated setting through transition planning. (Id. at 13-14.) In addition, the Settlement Agreement imposed requirements relating to other practices at METO and its successor facilities. (Id. at 14-16.)

         The Settlement Agreement also included “System Wide Improvements” which identified goals and objectives in the areas of long-term monitoring, crisis management, and training. (Id. at 16-21.) The Settlement Agreement further required the development of an Olmstead Plan within eighteen months of the Settlement Agreement's approval. (Id. at 18.) The Settlement Agreement also established requirements relating to other state facilities, the modernization of state administrative rules relating to positive behavioral supports (“Rule 40”), and the substitution of offensive terminology in DHS publications. (Id. at 19-21.)

         When the Settlement Agreement was approved and adopted by this Court, the parties made promises and sweeping declarations that the settlement heralded widespread change for “hundreds of thousands of people in this state” and would “set the tone” nationally. (Doc. No. 146 at 13, 27.) The Plaintiffs stated that the Settlement Agreement's “unprecedented comprehensive positive changes” would benefit “not only Class members, but all people with developmental disabilities in this state.” (Id. at 8.) Defendants concurred with the Plaintiffs, stating: “[The Settlement Agreement] will greatly improve the quality in care of the lives of a large number of persons with disabilities, not only in Minnesota, but [for] people that come through Minnesota . . ., [a]nd we think that this [A]greement will set the tone for other states, as well.” (Id. at 27.)

         Almost immediately after the Court approved and adopted the Settlement Agreement, concerns about compliance-and assessing compliance-arose. For example, the Settlement Agreement expressly required Defendants to select and engage an External Reviewer. Once selected, the External Reviewer would “issue [written reports] informing the Department whether the Facility is in substantial compliance with [the] Agreement.” (Settlement Agreement § VII.B(4).) But several months after the Court's December 5, 2011 approval and adoption of the Settlement Agreement, the External Reviewer position remained unfilled. The Court informed the parties on May 4, 2012, that it was contemplating appointing a monitor to assist and advise the parties with respect to the implementation process. (Doc. No. 147 at 2.) Concerns about Defendants' failure to fill the External Reviewer position under the Settlement Agreement continued.

         On July 17, 2012, the Court observed that there was “clearly a need for a process to investigate potentially conflicting information, provide a coherent and complete presentation, and make recommendations to the Court.” (Doc. No. 159 at 9-10.) David Ferleger was suggested as a possible consultant or monitor. The Court was informed that Defendants had previously consulted with Mr. Ferleger to obtain his advice on fund distribution. (Id. at 10.) The Court was also aware that Defendants had previously requested Mr. Ferleger's consultation regarding the Olmstead Plan under the Settlement Agreement. (Id.) Accordingly, based on his expertise and familiarity with the matter, the court appointed Mr. Ferleger as an independent advisor and compliance monitor (“Court Monitor”) on July 17, 2012. (Id. at 13.) In assuming this role, Mr. Ferleger continued to work with the Defendants on the development of the Olmstead Plan. (Id. at 14 n.22.)

         The External Reviewer function, required pursuant to the Settlement Agreement, was still not in place as of September 17, 2012. (Doc. No. 165 at 27.) The position remained unfilled throughout 2012 and into 2013. As a result, externally reviewed reports contemplated by the Settlement Agreement were not delivered. Finally, on April 25, 2013, the Court ordered that the role of the Court Monitor also subsume the External Reviewer function set forth in Section VII.B of the Settlement Agreement. (Doc. No. 212 at 6.) Importantly, Defendants' own report, dated February 2, 2016, notes that “the Court appointed the Court Monitor as the External Reviewer, with the consent of Plaintiffs and Defendants. DHS funds the costs of the external reviewer.” (Doc. No. 531 at 32.)

         Pursuant to its April 25, 2013 Order, the Court asked the Court Monitor to “independently investigate, verify, and report on compliance with the Settlement Agreement and the policies set forth therein on a quarterly basis.” (Doc. No. 212 at 6.) On June 11, 2013, the Court Monitor submitted an external review which identified several areas of noncompliance, including the operation of one of DHS's facilities without a license in violation of Minn. Stat. § 144.50, subd. 1(a). (Doc. No. 217 at 44- 45.)

         On August 28, 2013, the Court extended its jurisdiction for an additional year to December 4, 2014. (Doc. No. 224.) The Court expressed specific concern “with the sluggish pace of implementation of the specific terms of the [] Agreement and the resulting noncompliance.” (Id. at 10.) To facilitate compliance, the Court ordered Defendants to submit an implementation plan with specific actions, deadlines, and reporting requirements for the Court's review. (Id. at 3-4.) The Court contemplated three distinct plans: (1) a plan for the Settlement Agreement's then-existent provisions and the MSHS-Cambridge closure; (2) a plan for the Rule 40 modernization; and (3) the Olmstead Plan. (Id. at 4-6.) Defendants filed proposals on October 17 and October 30, 2013. (Doc. Nos. 235, 244.) The Court directed the Court Monitor to work in cooperation with the current DHS Commissioner to finalize the plans. (Doc. Nos. 237, 248.)

         On October 7, 2013, Plaintiffs filed a motion for sanctions against Defendants for bad-faith conduct and lack of candor to the Court. (Doc. No. 230.) Plaintiffs argued that Defendants willfully and intentionally acted in substantial noncompliance with the Settlement Agreement. (Doc. No. 232 at 29.) On December 17, 2013, the Court found that Defendants violated the Settlement Agreement and granted Plaintiffs' request for sanctions. (Doc. No. 259 at 5.) Specifically, the Court found that “DHS consciously concealed and misled the Plaintiffs and the Court with regard to the lack of licensure, or if not consciously concealed and misled, was indifferent to both the violation and the expectation of candor with all parties.” (Id.) The Court reserved ruling on what sanctions were appropriate, however, until the Court Monitor submitted his next report on Defendants' current status of compliance and on Defendants' cooperation with the implementation plan required pursuant to its Order on August 28, 2013. (Id. at 5-6.)

         On January 22, 2014, the Court ordered the parties to meet with the Court Monitor to “communicate and negotiate in good faith to once and for all establish a final implementation plan.” (Doc. No. 266 at 5.) The parties met on February 3 and 4, 2014. (Doc. No. 271 at 3.) On February 13, 2014, the Court Monitor recommended adoption of a Comprehensive Plan of Action (“CPA”).[3] (Id. at 2.) The CPA was designed to “serve as both a roadmap to compliance and as a measuring stick for compliance.” (Id. at 4.)

         The Court formally adopted and approved the CPA (Doc. No. 283 (“CPA”)) on March 12, 2014.[4] (Doc. No. 284.) The combination of the Settlement Agreement and CPA is hereinafter referred to as the “Agreement.” The Agreement includes 104 Evaluation Criteria (“EC”) and accompanying Actions:

The ECs set forth the outcomes to be achieved and are enforceable. The Actions under the ECs are not enforceable requirements. Compliance with an EC will be deemed to have been achieved if the EC's Actions are taken.
However, the Departments of Human Services may undertake alternate actions to achieve satisfaction of the EC. The Actions may be modified pursuant to the modification process set forth in the Order of August 28, 2013.
ECs are indicated by whole Arabic numbers (e.g., 1, 2) and, in the original, by blue shading. Actions are indicated by Arabic numbers with consecutive decimals (e.g., 1.1, 1.2, 1.3, 2.1, 2.2, 2.3).

(CPA at 1.) The Court ordered Defendants to file an initial update in thirty days regarding compliance with the Agreement, and to file subsequent updates (“Compliance Reports”) on a bi-monthly schedule (“Compliance Reports”). (Doc. No. 284 at 3.) Defendants submitted their first and second Compliance Reports on April 11, 2014 and May 12, 2014, respectively.[5] (Doc. Nos. 289, 299.) They filed their third Compliance Report on July 15, 2014. (Doc. No. 328.) Each Compliance Report conceded areas of noncompliance.

         On June 20, 2014, the Court Monitor submitted a report with additional findings of noncompliance.[6] (Doc. No. 327.) Defendants conceded the areas of noncompliance and stated that “DHS can and will do more.” (Doc. No. 324 at 2.) In light of Defendants' ongoing noncompliance, Plaintiffs asked the Court to rule on the sanctions currently held in abeyance pursuant to the Court's December 17, 2013 Order. (Doc. No. 332 at 2.) In lieu of issuing contempt or other punitive sanctions, the Court extended its jurisdiction an additional two years to December 4, 2016, and increased the Court Monitor's responsibilities to: (1) oversee Defendants and ensure their accountability; and (2) expedite prompt and meaningful compliance. (Doc. No. 340 at 8-9, 14.)

         On October 20, 2014, the Court Monitor filed a report with findings of noncompliance related to the use of restraint and seclusion and asked the Court to adopt specific recommendations. (Doc. No. 347 at 54-57.) One of his recommendations was to obtain additional external expertise to assist with person centered planning and implementation of positive supports. (Doc. No. 347 at 54-55.) Defendants filed a response arguing that the Court Monitor's report did not demonstrate lack of substantial compliance, and suggested that he assess overall progress in lieu of pointing out specific and particular problems. (Doc. No. 352 at 1-2.) Defendants also objected to the Court Monitor's recommendations. (Id. at 4-10.) The Court adopted the Court Monitor's recommendations on December 5, 2014, and reserved the right to impose monetary or other sanctions if Defendants failed to comply. (Doc. No. 368 at 10.) On January 5, 2015, the Court Monitor notified the Court that Defendants had complied with the December 5, 2014 Order by approving the appointment of external expert, Dr. Gary LaVigna. (Doc. No. 377.)

         Defendants submitted their fourth and fifth Compliance Reports on September 15, 2014 and November 17, 2014, respectively. (Doc. Nos. 342, 360.) The Court Monitor submitted a report on November 25, 2014 indicating that certain items in the fourth and fifth Compliance Reports could not be verified.[7] (Doc. No. 374.) Defendants objected to the Court Monitor's findings on December 22, 2014. (Doc. No. 372.) Defendants filed their sixth Compliance Report on February 13, 2015. (Doc. No. 387.) On February 18, 2015, the Court Monitor notified the Court that certain items in the sixth Compliance Report appeared to be inaccurate. (Doc. No. 388 at 1.) Defendants objected to the Court Monitor's findings on March 4, 2015. (Doc. No. 393.) Defendants filed their seventh Compliance Report on March 16, 2015. (Doc. No. 396.) On April 14, 2015, the Court Monitor submitted a report detailing multiple instances of inaccurate and unverified information in Defendants' Compliance Reports. (Doc. No. 414.) Defendants agreed that there were areas where they could improve their reporting; however, they disagreed with the Court Monitor's assertion that they knowingly filed inaccurate or non-verifiable information. (Doc. No. 429 at 1.) Defendants argued that the Court Monitor was holding them to expectations beyond those imposed by the Agreement, and cited challenges with reporting on a bi-monthly basis. (Id. at 7.) Plaintiffs once again asked the Court to impose sanctions or other relief for Defendants' lack of compliance with the Agreement. (Doc. No. 430 at 1.) The Court held a Status Conference on May 28, 2015 to address the issues impeding compliance with the Agreement.[8] (Doc. No. 456.)

         Following the Status Conference, the parties participated in mediation to address remaining issues.[9] On June 18, 2015, the Court stayed the parties' and the Court Monitor's reporting obligations to the Court to allow the parties to focus on mediation. (Doc. No. 462 at 2.) On July 9, 2015, the Court extended the stay of the reporting requirements to August 10, 2015 due to continued mediation. (Doc. No. 472 at 2.) Following mediation on the identified issues, the Court directed the Defendants to submit a “Gap Report” to report on Defendants' compliance with the Agreement for the period between May and September 2015.

         Defendants submitted the Gap Report on February 2, 2016.[10] (Doc. No. 531 (“Gap Report”).) The Gap Report discussed new organizational structures that Defendants had put in place to improve compliance and quality oversight of the Settlement Agreement. (Id. at 5-7.) One of the organizational improvements touted was the development of “Independent Subjects Matter Experts” with expertise “in a variety of areas, to provide independent and objective assurance, advisory, and investigative services to the Department in relation to the Jensen Settlement Agreement.” (Id. at 6.) The Gap Report further specified that the “highly qualified and experienced subject matter experts, with specialized skills, [would] assist the Department in bringing significant improvements to the care and treatment of individuals with developmental disabilities outlined in the Jensen Settlement Agreement.” (Id.)

         Around this time, the parties also jointly proposed modified reporting requirements with respect to the Agreement and the Olmstead Plan. (Doc. Nos. 537, 539.) On February 22, 2016, the Court issued orders establishing separate reporting schedules for the Agreement and the Olmstead Plan.[11] (Doc. Nos. 544, 545.) Both orders included the following provision extending the Court's jurisdiction:

Based on all of the above and the current status of this matter, and pursuant to the Settlement Agreement § XVIII.B and the Court's September 3, 2014 Order (Doc. No. 340), the Court's jurisdiction is extended to December 4, 2019. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants' compliance and absent stipulation of the parties.

(Doc. No. 544 at 8; Doc. No. 545 at 6.) The February 22, 2016 Order also invited each party to submit a proposal regarding how the Independent Subject Matter Experts could be utilized for external reporting. (Doc. No. 545 at 6 ¶ 16.) On March 14, 2016, Defendants filed a proposal stating:

The [Subject Matter Experts] will be called upon by the Department to offer expert independent consultation services and problem-solving, and will be expected to provide written reports and documentation of recommendations related to individuals and systemic issues. An assignment may be generated from the Jensen/Olmstead Quality Assurance and Compliance Office (formerly the Jensen Implementation Office), the Jensen Internal Reviewer, the Department-wide Quality Assurance Team for People with Disabilities, or the Department's Compliance Office.

(Doc. No. 549 at 1.) Defendants filed a supplement to their original proposal explaining how the Subject Matter Experts could also be used to fulfill the External Reviewer function:

With respect to the External Reviewer Function, it is the proposal of the Department that the Department will identify from the pool of [Subject Matter Experts] a proposed External Reviewer to perform the duties as set forth in the JSA and the Comprehensive Plan of Action (CPA).

(Doc. No. 550 at 2.)

         On March 18, 2016, the Court issued an Order on its review of the Gap Report. (Doc. No. 551 (“Gap Report Order”).) Recognizing Defendants' commitment to new internal structures, including the pool of Independent Subject Matter Experts to provide independent and objective assurance, advisory, and investigative services, the Court stayed the bulk of the Court Monitor's duties, including his periodic reporting requirements.[12] (Gap Report Order at 3, 24.)

         The Court stated, “[g]iven DHS's important updated organizational structure created to address, supervise, and sustain compliance and the Court's desire to ensure that these measures will be successfully utilized to achieve their stated purposes, the Court finds that it is appropriate to propose specific follow-up by DHS (utilizing their new verification mechanisms) regarding certain items discussed in the Gap Report, rather than assign this follow-up to the Court Monitor.” (Id. at 7.) The Court further observed that “[i]f the follow-up by DHS does not sufficiently clarify and support DHS's compliance, the Court may request that the Court Monitor follow up on these items.” (Id.) In this order, the Court also stated the following regarding its jurisdiction:

On December 5, 2011, the Court approved the parties' Stipulated Class Action Settlement Agreement . . . and reserved jurisdiction over this matter ‘to enforce compliance with the provisions of the Agreement.' The Jensen Settlement Agreement provided that the Court would retain jurisdiction for two years ‘or as the Court deems just and equitable.' The Court has since extended its jurisdiction on three occasions, most recently extending its jurisdiction to December 4, 2019. The Court is hopeful that substantial compliance with the Jensen Settlement Agreement will be achieved by this date.

(Id. at 2 (citations omitted).)

         Defendants filed their first Compliance Report pursuant to the updated reporting schedule on March 31, 2016. (Doc. No. 553-1.) Defendants indicated compliance with all ECs reported on. (Id.) The report reiterated Defendants' commitment to developing the “pool of experts in a variety of areas, to provide independent and objective assurance, advisory, and investigative services of the Department in relation to the Jensen Settlement Agreement.” (Id. at 6.) On May 31, Defendants submitted additional verification with respect to its Gap Report pursuant to the Court's March 18, 2016 Order. (Doc. No. 572.)

         The Court held a Status Conference on June 6, 2016. (Doc. No. 576.) During the Status Conference, the Court asked DHS to provide an overview of its organizational structure, including its process for ensuring accuracy and completeness of reporting, and the External Reviewer Function.[13] (Doc. No. 568 at 3-4.) Plaintiffs and Consultants were also invited to comment. (Id.) Prior to the conference, Defendants explained that the Subject Matter Experts could “perform internal reviews for the Department of Human Services (the “Department”), as well as the External Reviewer function contemplated by the Jensen Settlement Agreement.” (Doc. No. 550 at 1.)[14]

         After the Status Conference, it was clear that the parties were unable to agree on whether or how to amend the External Reviewer function set forth in the Agreement; therefore, the Court concluded that it was appropriate to continue the External Reviewer function pursuant to the Agreement and prior orders of the Court. (Doc. No. 578 (“June 21, 2016 Order”) at 3.) Accordingly, the Court ordered that the Court Monitor would continue to fill the External Reviewer role. (Id.) Observing that the Court Monitor's duties, including his role as External Reviewer, were currently stayed, the Court reserved the right to order that the Court Monitor's duties resume or to make further modifications to the Court Monitor's duties at any time consistent with the Court's discretion. (Id. at 3-4.) The Court encouraged the parties to collaborate with each other and the Consultants to submit additional proposals or stipulations on the External Reviewer Function. (Id. at 4.)

         The June 21, 2016 Order also addressed Defendants' state of compliance with respect to its submission of verification updates on the Gap Report (Doc. No. 572). (June 21, 2016 Order at 4-7.) The Court recommended that DHS establish a protocol to govern its compliance evaluation and verification efforts, including efforts involving Independent Subject Matter Experts or the Jensen Internal reviewer. (Id. at 6-7.)

         On August 25, 2016, the Court held an informal meeting with the parties to discuss the possibility of transitioning to a local Court Monitor. (Doc. No. 593 at 3.) The Court invited the parties to submit letters addressing their positions on a possible appointment. The parties submitted letters on September 7, 2016, and September 12, 2016, respectively. (Doc. Nos. 590, 591.) In the interim, Defendants submitted their second Compliance Report pursuant to the updated reporting schedule.[15] (Doc No. 589.) The parties did not agree on appointing a local Court Monitor. (Doc No. 593 at 3.) On September 21, 2016, the Court observed a need for continued monitoring of Defendants' compliance and reaffirmed David Ferleger's appointment as Court Monitor. (Doc. No. 593 at 4.) The Court advised that a subsequent Order would indicate the Court Monitor's next steps regarding investigation of Defendants' compliance with the Agreement. (Id.)

         On September 29, 2016, the Court lifted the stay on the Court Monitor's duties and directed him to conduct a review of Defendants' recent reports to assess substantial compliance with regard to all components of the Agreement. (Doc. No. 595 at 2-3.) The Court Monitor submitted his findings to the Court on November 29, 2016. (Doc. No. 604.) The Court Monitor found several areas of noncompliance[16] and multiple others that were inconclusive.[17] Defendants objected to the Court Monitor's findings on December 12, 2016 and argued that continued court monitoring was inappropriate. (Doc. No. 606-2 at 6-8.) Defendants' response also included several clarifications and areas identified for improvement with respect to a number of ECs. (See Doc. No. 606-2.)

         On January 5, 2017, the Court held a Status Conference to discuss the Court Monitor's findings and to follow up on Defendants' verification protocols. (See Doc. Nos. 608, 611.) After the Status Conference, the Court ordered Defendants to incorporate the improvements and clarifications it identified in its response to the Court Monitor's findings and stayed the Court Monitor's duties pending Defendants' submission of their next two Compliance Reports. (Doc. No. 612 at 3.) The Court reserved the right to reengage the Court Monitor to investigate or verify other issues that may arise. (Id.)

         Defendants submitted their third and fourth Compliance Reports pursuant to the updated reporting schedule on February 24, 2017 and March 31, 2017 respectively. (Doc. Nos. 614-1, 621-1.) These reports removed conclusions as to whether each EC was met. (See Doc. Nos. 614-1, 621-1.) The February 24, 2017 Compliance Report indicated that Defendants had executed Independent Subject Matter Expert Master Contracts with eight individuals. (Doc. No. 614-1 at 6.) Defendants also explained the process to generate the need for an Independent Subject Matter Expert review:

[I]dentification of the need for an Independent Subject Matter Expert Review can generate from internal or external sources: [1] Internally, by request of the Commissioner, Compliance Office, Department-wide Quality Assurance Leadership Team, Jensen Internal Reviewer, or JOQACO; and [2] Externally, by ...

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