Jensen et al v. Minnesota Department of Human Services et al

Filing 159

ORDER. 1. David Ferleger is hereby appointed as an independent advisor and monitor pursuant to this order. The parties shall cooperate fully with David Ferleger, and provide him with access to the facilities, services, programs, data, and documents relevant to the Settlement Agreement. He may convene meetings, meet relevant individuals and groups, attend case-related court proceedings and review pleadings, motions, and documents submitted to the court. The parties shall serve Mr. Ferleger with all such papers. He shall have ex parte access to the parties, their counsel and to the Court. However, in the event there is any information provided to the Court by David Ferleger which is utilized or otherwise relied upon by the Court for any reas on relating to compliance with the Settlement Agreement, the Court will provide such information to counsel for the parties. 2. Defendants shall file within sixty (60) days a status report on implementation of the Settlement Agreement (apart from the fund distribution). The format and structure for the report shall be developed in cooperation with, and determined by, David Ferleger. 3. The format and structure for the reports of the External Reviewer shall also be developed in cooperation with, and determined by, David Ferleger. (Written Opinion). Signed by Judge Donovan W. Frank on 7/17/2012. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents,
Guardians and next friends of Bradley J.
Jensen, et al.,

Civil No. 09-1775 (DWF/FLN)

Plaintiffs,
v.

ORDER

Minnesota Department of Human Services,
an agency of the State of Minnesota, et al.,
Defendants.

Margaret Ann Mullin, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq.,
Johnson & Condon, PA, counsel for Plaintiffs.
P. Kenneth Kohnstamm and Steven H. Alpert, 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.

The parties in this class action reached a Stipulated Class Action Settlement
Agreement, Doc. No. 104 (June 23, 2011) (“Settlement Agreement”), which was
approved by the Court. Final Approval Order for Stipulated Class Action Settlement
Agreement. Order of December 5, 2011, Doc. No. 136 (“Approval Order”). The
Settlement Agreement is Exhibit A to the Approval Order. That order “reserves
continuing jurisdiction for the time period set forth in the Agreement to enforce

compliance with the provisions of the Agreement and the Judgment, as well as assuring
proper distribution of the Settlement payments.” ¶ 2.
The Settlement Agreement created a $3,000,000 fund covering distributions to
Class Members, fees and expenses and also established requirements for systems
improvements and changes which are intended to benefit present, future, and potential
members of the class. 1 Prior orders of the Court addressed the allocation and distribution
of the fund. E.g., Orders of July 22, 1011, Doc. No. 111; February 14, 2012, Doc. No.
141.
This order addresses the service system elements of the Settlement Agreement
adopted by the Approval Order. The systems elements provisions include, for example:
• The closure of the institution called METO, and requirements for any
successor to METO. 2
• Addition of professional staff (15 new staff = 14 FTE). 3
• Staff training. 4
• Community Services.
1

See Settlement Agreement at ¶ 4 (a State goal is to “extend the application of the
provisions in this Agreement to all state operated locations serving people with
developmental disabilities with severe behavioral problems or other conditions that
would qualify for admission to METO” or its institutional or community successors.).
2

Section IV. The Settlement Agreement also has provisions related to the
Minnesota Security Hospital and the Anoka Metro Regional Treatment Center. Section
X.D & E.
3

Section X.A.2.

4

Section IX.

2

• Transition planning for moves to community, and placement alternatives. 5
• Limits on placements/transfers to Minnesota Security Hospital and Anoka
Metro Regional Treatment Center, on Olmstead standards.
• Placements from Minnesota Security Hospital and Anoka Metro Regional
Treatment Center, to occur based on Olmstead standards. 6
• Creation of Olmstead Plan and expansion of community services. State
Operated Community Support Services (“CSS”) “will be expanded” to
deliver right care at right time in most integrated setting for people with
developmental disabilities “in accordance with the U.S. Supreme Court
decision in Olmstead v. L.C.” 7
• Prohibitions on Seclusion and Room Time Out, and Prone Restraint and
Chemical Restraint.
• Limits on other restraint (not prohibition) under new policy with
documentation and review. 8
• Prohibition of chemical restraint and PRN (“as is necessary”) psychotropic
medication for the purpose of managing behavior or restricting movement;
limits on the use of restraints. 9
• Provisions for both internal review of restraint use and engagement of an
“External Reviewer” on compliance. 10

5

Section VIII.

6

Section X.D. and X.E.

7

Section X.A. Also, Section X.B. Olmstead v. L.C., 527 U.S. 581 (1999).

8

Sections V, VI, and VII.

9

Section VII.

10

Section VII.

3

The Approval Order provides that the “Court shall retain jurisdiction over this
matter for two (2) years from approval of this Agreement” both to receive reports and
information and also “as the Court deems just and equitable.” 11
The subject matter encompassed by the Settlement Agreement is specialized and
its implementation is admittedly complex, involving intricate and interlocking activities
by multiple state agencies, state officials, and others, over many months. As the Court
stated at the settlement approval hearing, the credibility and reliability of the judicial
process is at stake when an order such as this is entered and, therefore, the Court intended
to ensure that it was fully informed on the progress of implementation. The First Circuit
Court of Appeals expressed this view in a systemic education case, explaining that “the
monitoring process is a basic responsibility of the court. To the extent that the myriad of
minor problems which will arise can be resolved without the necessity of resorting to the
district judge, the process of implementation will be facilitated.” Morgan v. Kerrigan,
530 F.2d 401, 429 (1st Cir. 1976), cert. denied, 426 U.S. 935 (1976).
Defendants, 12 on May 14, 2012, provided the Court with a report on the status of
compliance. That report included some positive elements and also conceded
non-compliance with some elements. Of concern to the Court is that the report failed to

11

“The Court shall retain jurisdiction over this matter for two (2) years from
approval of this Agreement for the purposes of receiving reports and information required
by this Agreement, or resolving disputes between the parties to this Agreement, or as the
Court deems just and equitable.” Section XVIII.B.
12

The word “Defendants” herein refers to the State Defendants.

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mention (and thus failed to report on) a number of important requirements. 13 The report
does not provide any documentation or references which would demonstrate or facilitate
verification of its representations.
By letter of May 4, 2012, the Court suggested to the parties that it was
contemplating appointing a monitor to provide assistance and advice to the parties with
respect to the implementation process. The Court also noted that the monitor’s role
would be to take a balanced approach in a nonadversarial manner. The May 15, 2012
status conference included this topic. Having had no reply from either side to the May 4
letter, the Court wrote again on May 31, 2012 on Mr. Ferleger’s role. (Doc. No. 151.)
Defendants responded to the Court’s May 31 letter on June 6, 2012, stating that they
wished to contract with Mr. Ferleger for his assistance solely regarding the Olmstead
Plan element of their obligations, not the settlement generally; their letter did not
reference the proposed monitoring role. (Doc. No. 152.)
On June 7, Plaintiffs responded to the Court that limiting consultation by
Mr. Ferleger to just one issue was unacceptable, given the Defendants’ multiple other
obligations under the Settlement Agreement. Plaintiffs wrote:
Rather, because the Settlement Agreement covers several important areas,
including prohibition on the use of restraints, seclusion and painful
techniques, training and the dissemination of positive behavioral supports,
13

Among the requirements not mentioned in Defendants’ report are: compliance
with Olmstead standards and person-centered planning for METO successors (Section IV
of the Settlement Agreement); action on abuse and neglect discipline and reporting
(Section V.G.); training of facility treatment staff on positive behavioral supports (Section
IX.A.); visitor policy (Section IX.C.); bill of rights posting (Section IX.E.); community system
expansion to deliver Olmstead-consistent care (Section X.A.).

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implementation of best practices for the care and treatment of people with
developmental disabilities, Rule 40 Committee, transitioning people with
developmental disabilities from the Minnesota Security Hospital, and
several other items, Mr. Ferleger’s national expertise would be very helpful
to facilitate the Settlement in a number of areas.
(Doc. No. 153.) 14
The Court remains concerned with Defendants’ continued non-compliance with
the External Reviewer requirements. Sec. VII.B.4 of the Settlement Agreement requires:
“The external reviewer shall issue quarterly reports to the Court for the duration of this
Agreement.” The Settlement Agreement was approved by the Court December 5, 2011.
These reports were thus due March 5 and June 5, 2012. No reports were filed. As noted
above, a status report by Defendants’ counsel, dated May 14, 2012, stated with regard to
the External Reviewer, “Admittedly, the Department is not in compliance with this
requirement.” Regarding the quarterly reporting, Defendants’ counsel noted that no
report was filed in March, and stated:
The next report is due in early June. The Department is hopeful that this
report will be completed within the required time lines. However, in the
event there is another delay the Department will file an updated status
report.
After Defendants failed to file the required report in June, or to update the May
status report, the Court, on June 26, 2012, wrote to the parties noting the non-compliance

14

On June 8, 2012, Defendants responded to Plaintiffs’ Class Counsel’s letter,
acknowledging disagreement on “the role that Mr. Ferleger should have in this matter”
and requesting a status conference. (Doc. No. 154.) Given this order, there is no need for
another status conference.

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regarding the External Reviewer, and stating that “the purpose of this letter is to inquire
as to the progress on the Settlement Agreement.” 15 (Doc. No. 155.)
On July 6, 2012, Defendants filed what they called “the Public Quarterly Report”
under the Settlement Agreement. (Doc. No. 156.) The filing does not explain or seek to
excuse the failure to submit timely reports. The report is not by an External Reviewer
engaged under the Settlement Agreement, but is an unsigned three-page document dated
June 1, 2012 and titled, “Monitoring Visit – PUBLIC,” by two Special Investigators for
the Minnesota Department of Health. (Doc. No. 156-1.) The report states that it was on
an “interim monitoring visit to this facility until an external examiner is hired in
accordance with the (sic) Jensen v. Minnesota Department of Human Services.” The
brief report, does not review all of the Settlement Agreement’s requirements. The report
acknowledges at least some of its omissions. 16
On July 9, 2012, Defendants responded to the Court’s letter of June 26, with
representations regarding compliance with selected Settlement Agreement requirements.
(Doc. No. 157.) As with the May 14 status report, the report did not include the status of
a number of requirements. The Defendants’ July 9 letter characterized the July 6 filing
(Doc. No. 156-1) as the “first quarterly report” by the Minnesota Department of Health
15

The Court’s letter also requested an update on whether the “Third Party Expert,”
with regard to prohibited techniques, a different role from the External Reviewer, had
been retained. Section V.E.
16

For example, review of the “facility’s compliance with the Olmstead Plan was
deferred until an external reviewer is hired and trained in these practices.” The publicity
and marketing of the facility was not reviewed.

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under the Settlement Agreement. That letter also included responses to that report by the
Plaintiffs and Defendant Department of Human Services (“DHS”). See Exhibits 1 – 5,
Doc. No. 157-1.
Considered in full, Defendants’ most recent filing presents serious questions and
seemingly contradictory information regarding compliance. DHS itself is highly critical
of the “first quarterly report,” repeatedly pointing out its weaknesses and omissions with
regard to “core elements to the Jensen settlement.” (Doc. No. 157-1, Ex. 3.) In two
e-mails included with Defendants’ filing, Plaintiffs’ Class Counsel also found serious
fault with the report, noting that it was “silent” on many issues, and stating, “We do not
believe the Report meets the requirements of the Settlement Agreement.” (Doc.
No. 157-1, Ex. 2 (June 19, 2012 e-mail).) Class counsel also requested to be advised of
“specific reasons why PRNs 17 are being used at Cambridge,” raised “questions and
concerns relating to the current license for Cambridge,” and protested their not having
been notified of a license variance for Cambridge, and expressed concern “involving
inconsistency [of the variance] with the Settlement [listing multiple Settlement
Agreement requirements as examples].” (Doc. No. 157-1, Ex. 5 (July 5, 2012 e-mail).)
On July 10, 2012, Plaintiffs Class Counsel responded to the Court’s June 26, 2012
letter, expressing concerns about the failure to fill the External Reviewer position and the
17

PRNs are described in a three-page document dated June 1, 2012, entitled,
“Monitoring Visit – PUBLIC” by two special investigators for the Minnesota Department
of Health (Doc. No. 156-1) as “a low dose of Ativan for anxiety.” The document went on
to state, “[t]he only other PRNs at the facility were medications such as Imodium,
ibuprofen, and topical creams.”

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failure of the Department of Health site visit to address the issues in the Settlement
Agreement. (Doc. No. 158.) Class Counsel also raised multiple compliance concerns in
his attachment, “Advocate Concerns Regarding Implementation of Jensen Settlement.”
(Doc. No. 158-1.) Several points made include:
• “There are significant advocate concerns about the lack of transfers of
people with developmental disabilities at St. Peter and Anoka.”
• On staff training, “it is impossible to determine if the training meets the
requirements of the Settlement. We are also advised that advocates have
learned that some MSHS staff do not believe the training provided is
adequate.”
• “There is a noted disparity between the DHS position to the Court that there
is no demand to open the second home identified in the settlement and the
number of people with developmental disabilities at St. Peter whom
advocates believe could possibly benefit from a transfer to this group
home.”
• “It is also unclear if DHS is using person centered planning and quality of
life approaches in transition planning from St. Peter, Anoka, and
MSHA-Cambridge as contemplated in the Settlement.”
• “We are advised that behavior analysts (including an analyst with a high
school diploma) were grandfathered in despite the Settlement requiring
certain credentials.”
• “We have been advised that some staff have expressed concerns about
training documents supporting or condoning the use of chemical restraint,
and that clinical directors are not present at the facility.”
(Doc. No. 158-1.)
Of course, it is not for the Court to resolve these concerns and questions at this
time. Consequently, the Court makes no findings of fact regarding the compliance
concerns raised by Plaintiffs. There is, however, clearly a need for a process to

9

investigate potentially conflicting information, provide a coherent and complete
presentation, and make recommendations to the Court.
The Court approved the Settlement Agreement more than seven months ago. The
External Reviewer has not been engaged, mandated reports have not been filed, and the
Court has not been advised regarding the status of compliance with many of the systemic
elements of the Settlement Agreement. 18
More than two months ago, the Court suggested the appointment of a consultant or
monitor. Neither Plaintiffs nor Defendants have questioned Mr. Ferleger’s qualifications
to perform the monitor role if called upon to do so by the Court. Significantly,
Mr. Ferleger was brought to the Court’s attention by the parties months ago as someone
who had previously responded to Defendants’ pre-settlement request for his advice on
fund distribution in this case. More recently, Defendants have requested Mr. Ferleger’s
consultation to advise the Olmstead Committee under the Settlement Agreement.
Plaintiffs seek an expanded formal role for Mr. Ferleger, stating that “Mr. Ferleger’s
national expertise would be very helpful to facilitate the Settlement in a number of areas.”
(Doc. No. 153.) Since that time, the Plaintiffs’ Class has questioned the level of
compliance in a number of respects. (Doc. No.157-1, Ex. 5.)
Defendants acknowledge that they expect to have their compliance monitored.
Anne Barry, Deputy Commissioner of the Defendant Minnesota Department of Human

18

See note 13 above noting some of the requirements which were not touched on in
Defendants’ May 14, 2012 report.

10

Services, affirmed at the settlement approval hearing that Defendants expected external
scrutiny in this case: “First of all, we fully expect that watchfulness and scrutiny. We are
in the business of public service, so we understand we will be watched. We expect that
we will be watched.” (Tr. at 72 (Dec. 1, 2011).)
Appointment of an independent advisor, consultant, or monitor is appropriate in
light of the nature and complexity of the Defendants’ obligations under the
court-approved Settlement Agreement, the fact that Defendants admit they are already in
non-compliance with an important element of their obligations (appointment of the
“external reviewer”), the gaps and deficiencies in the Defendants’ May 14 and July 9,
2012 compliance reports, the failure to file required reports by the External Reviewer, the
compliance deficiencies raised by Plaintiffs’ Class Counsel, and the special expertise
required for effective review of the systemic elements of the Settlement Agreement.
CONCLUSION
In the Court’s view, not only will the interests of judicial economy be served by
the appointment of an independent advisor, irrespective of what title is attached to
Mr. Ferleger, but it will also serve the public interest as well as the interests of all parties
in this case. Therefore, the Court is appointing David Ferleger as an independent advisor
to the Court to assess and monitor the implementation of the Settlement Agreement. The
role of Mr. Ferleger is viewed by the Court as a nonadversarial role and, as such, the
Court assumes and expects the parties will cooperate and communicate with

11

Mr. Ferleger. 19 The Court expects that David Ferleger, as the Court’s independent
advisor, will assist and inform the Court on the implementation of the Settlement
Agreement’s requirements.
The expectation of the Court is that the reporting and monitoring under this order
will facilitate a non-adversarial implementation process. That failing, Mr. Ferleger will
make appropriate recommendations to the Court. The Defendants, at least on the
Olmstead Plan issue, acknowledge a need for “consultation,” apparently not favoring
“monitoring.” Mr. Ferleger will certainly provide advice, consultation, and
recommendations to the parties, consistent with his role. However, the Court does not
hesitate, for reasons set forth in this order, to acknowledge and affirm its obligation to
oversee, facilitate, and, yes, enforce compliance with the terms of this Settlement
Agreement that will benefit so many for years to come. The Court’s obligation could not
be appropriately fulfilled by relying on a consultant in a more narrow role, as envisioned

19

In re Peterson, 253 U.S. 300, 312-13 (1920) (“Courts have ... inherent power to
provide themselves with appropriate instruments required for the performance of their
duties. This power includes authority to appoint persons unconnected with the court to
aid judges in the performance of specific judicial duties”). See, e.g., In re World Trade
Center Disaster Site Litigation, 2008 U.S. Dist. LEXIS 23818 (S.D.N.Y. 2008) (“The
importance of these cases is clear, to the litigants and to society. The ability of the court
and counsel to cause them to progress towards resolution with due speed, economy and
fairness depend very much on the ways that complex information can be organized and
reported, reliably, responsively and consistently.”).
Courts often use monitors or advisors with regard to compliance with complex
decrees. E.g., Labor/Community Strategy Ctr. v. Los Angeles County Metro. Trans. Auth.,
263 F.3d 1041, 1045 (9th Cir. 2001), cert. denied, 535 U.S. 951 (2002) (oversight of
compliance with Settlement Agreement). Harris v. Philadelphia, 137 F.3d 209, 214 (3d
Cir. 1998) (master to monitor city's compliance with consent decree).

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by the Defendants, given the current status of noncompliance with important aspects of
the Settlement Agreement and the serious compliance issues that have been raised by the
Plaintiff Class.
Accordingly, IT IS HEREBY ORDERED:
1.

David Ferleger 20 is hereby appointed as an independent advisor and

monitor pursuant to this order. 21 The parties shall cooperate fully with David Ferleger,

20

Mr. Ferleger is highly qualified. He is a seasoned attorney and author in the field
of disability rights, disability class actions (having represented both state defendants and
plaintiffs), and in serving the federal courts in several cases as special master,
court-appointed monitor, and guardian ad litem. In the guardian ad litem case, he has
advised the court regarding a settlement (relevant to this one) involving a monetary
payment and systemic change related to institutional abuse, and currently serves as
technical advisor for implementation. He has argued disability rights cases five times in
the Supreme Court of the United States and participated in other Supreme Court litigation
on disability issues. Mr. Ferleger is familiar to the parties and the Court; as noted above,
he was introduced to the Court by Defendants’ counsel during the Settlement Agreement
negotiation process and attended the settlement approval hearing. Also familiar with
Mr. Ferleger are Colleen Wieck, Executive Director, Minnesota Governor’s Council on
Developmental Disabilities, and Roberta Opheim, Ombudsman Office for Mental Health
and Developmental Disabilities. Both assisted the parties in negotiating the Settlement
Agreement and both are state officials. In fact, Mr. Ferleger recently completed for
Dr. Wieck’s agency suggestions for an outline for the Olmstead Plan under the Settlement
Agreement.
21

In the near future, the Court will enter an order regarding compensation for
Mr. Ferleger and the mechanism for payment for his time, expenses, and any consultants.
Mr. Ferleger’s usual hourly rate for non-contingent work is $450 (it is higher for work in
the United States Supreme Court). However, given the Court’s appointment, and the
public interest his appointment will serve, he has agreed to a rate of $225.
Typically, courts impose such costs on any party or parties who have not complied
with their obligations in a systemic class action such as the one before the Court. The
Court believes that, at this time, there is an alternative to imposing the independent
advisor’s initial cost on a party. The Settlement Agreement reserved $50,000 of the
$3,000,000 for “advising counsel” for Class Members and the Court, with regard to
safeguarding eligibility for government benefits. The Court was able to address the
(Footnote Continued on Next Page)
13

and provide him with access to the facilities, services, programs, data, and documents
relevant to the Settlement Agreement. He may convene meetings, meet relevant
individuals and groups, attend case-related court proceedings and review pleadings,
motions, and documents submitted to the court. 22 The parties shall serve Mr. Ferleger
with all such papers. He shall have ex parte access to the parties, their counsel and to the
Court. However, in the event there is any information provided to the Court by David
Ferleger which is utilized or otherwise relied upon by the Court for any reason relating to
compliance with the Settlement Agreement, the Court will provide such information to
counsel for the parties.
2.

Defendants shall file within sixty (60) days a status report on

implementation of the Settlement Agreement (apart from the fund distribution). The
format and structure for the report shall be developed in cooperation with, and
determined by, David Ferleger.

(Footnote Continued From Previous Page)
attorney issue without expenditure of any of the $50,000. The Court expects to utilize
this “advising counsel” allocation for costs under this order.
In the event that the $50,000 is insufficient to fulfill the purposes of this order, the
Court reserves the right to allocate the costs of the independent advisor to one or both
parties.
22

As noted above, Defendants requested Mr. Ferleger to assist them with regard to
the Olmstead Plan they are drafting. In his capacity as monitor and advisor, Mr. Ferleger
may provide input, recommendations and feedback to the Olmstead Committee (which
includes both plaintiff and defendant representatives) on its planning, but will not be
responsible for the Olmstead report content.

14

3.

The format and structure for the reports of the External Reviewer shall also

be developed in cooperation with, and determined by, David Ferleger.
Dated: July 17, 2012

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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