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

Filing 188

ORDER AND MEMORANDUM. Consistent with its remarks at the December 11, 2012 Status Conference, the Court respectfully directs the parties to participate in a conference on January 14-15, 2013, to allow ample time, in consultation with David Ferleger, to address a number of issues relating to the status of Defendants' compliance with the Settlement Agreement including, but not limited, to the following: (see Order).(Written Opinion). Signed by Judge Donovan W. Frank on 12/20/2012. (Attachments: # 1 Attachment A)(BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF 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,

Civil No. 09-1775 (DWF/FLN)

Plaintiffs,
v.

ORDER AND MEMORANDUM

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.

M. Ann Santos, 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 above-entitled matter came before this Court for a Status Conference on
December 11, 2012. On November 27, 2012, the parties provided the Court with
statements in preparation for the December 11, 2012 Status Conference. The
court-appointed monitor, David Ferleger, also submitted a memorandum to the Court,
which was provided to all parties prior to the December 11, 2012 Status Conference.
The parties in this class action reached a Stipulated Class Action Settlement
Agreement (“Settlement Agreement”) (Doc. No. 104), which was approved by the Court
on December 5, 2011 (“Approval Order”) (Doc. No. 136). 1 The Approval Order reserved
continuing jurisdiction of the Court for the time period set forth in the Settlement
Agreement to enforce compliance with the provisions of the Settlement Agreement and
the judgment. Then, on July 17, 2012, in addition to appointing an independent advisor
and court monitor, David Ferleger, the Court addressed what it referred to as the “service
system elements of the Settlement Agreement.” (Doc. No. 159 at 2.) The Court has
attached, as Exhibit A to this Order, the Order of July 17, 2012, given that many of those
system elements were agenda items for the December 11, 2012 Status Conference. As
the Court noted in its July 17, 2012 Order, the role of Mr. Ferleger was viewed by the
1

The Settlement Agreement was also attached to the Approval Order as Exhibit A.
(Doc. No. 136, Ex. A.)
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Court as non-adversarial and, as such, the Court assumed and expected the parties would
cooperate and communicate with Mr. Ferleger. However, the Court also acknowledged,
at that time, its obligation to oversee, facilitate, and enforce compliance with the terms of
the Settlement Agreement, which was intended to benefit many individuals with
developmental disabilities for years to come.
The primary purpose of the Status Conference was to encourage a report to the
Court from each party as to its compliance with the Settlement Agreement, as well as to
review Plaintiffs’ assertions of noncompliance with the Settlement Agreement, especially
in the context of Plaintiffs’ pending motion for enforcement of the Settlement Agreement,
set to be heard on March 21, 2013.
Based upon the presentations of the parties at the Status Conference, as well as the
input of the court-appointed monitor, and the Court being otherwise duly advised in the
premises, the Court hereby enters the following:
ORDER
1.

January 14-15, 2013 Conference Between the Parties.

Consistent with its remarks at the December 11, 2012 Status Conference, the
Court respectfully directs the parties to participate in a conference on January 14-15,
2013, to allow ample time, in consultation with David Ferleger, to address a number of
issues relating to the status of Defendants’ compliance with the Settlement Agreement
including, but not limited, to the following:
a.

Reevaluation of the Olmstead Plan provisions of the

Settlement Agreement and how to proceed with the Olmstead Planning
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Committee to carry out the intent of the Settlement Agreement consistent
with paragraph 7 of the RECITALS, which states, in pertinent part:
The State agrees that its goal is to provide these residents with
a safe and humane living environment free from abuse and
neglect. The State also agrees that its goal is to utilize the
Rule 40 Committee and Olmstead Committee process
described in this Agreement to extend the application of the
provisions in this Agreement to all state operated locations
serving people with developmental disabilities with severe
behavioral problems . . . .
b.

Evaluation of the status of the Rule 40 Committee, which is

asked to carry out the intent and spirit of the Settlement Agreement.
c.

Discussion of any and all agreements and amendments to the

Settlement Agreement, to the extent that it has been suggested to the Court
that such agreements and amendments have been reached. The Court
expects the parties to draft a stipulation that should include any and all
agreed upon amendments to the Settlement Agreement.
d.

Discussion of outstanding training issues, and issues of

compliance and noncompliance with the Settlement Agreement with
respect to those provisions relating directly to training, as well as the hiring
of additional staff.
e.

Discussion and agreement upon a budget for David Ferleger,

especially given the fact that the parties have stipulated and agreed that

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Mr. Ferleger will serve as the External Reviewer. 2 The parties should also
discuss and agree upon the specific role of Mr. Ferleger and the scope of
his responsibilities.
f.

Discussion of whether the schedules and deadlines remain

realistic and meaningful, as well as whether extending the Court’s
jurisdiction for an additional period of time would be in the best interests of
all parties.
g.

Discussion of the continued role of the Court in the context of

the intent and spirit of the Settlement Agreement.
h.

Identification of responsible persons for each task.

i.

Deadlines for tasks.

j.

Tasks to be accomplished by Defendants.

k.

Current status of compliance.

l.

Unspent funds for community services (Olmstead issues).

m.

Transition planning (Olmstead issues).

n.

Any other items placed on the agenda by Plaintiffs,

Defendants, Mr. Ferleger, or the Court prior to January 14, 2013.
2.

To the extent that there remain a number of provisions of the Settlement

Agreement that must and should be implemented, there are a number of deadlines that

2

The Court suggests that, absent objection by one or more parties, one way to
resolve this issue, consistent with other settlement agreements, would be to agree upon a
budget that the Department of Human Services would be responsible for, that would
include payment to Mr. Ferleger, in lieu of monthly monitoring by the Court.
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have been appropriately self-imposed by the Department of Human Services in its own
status reports. The Court expects the parties to comply with those deadlines so that the
time period between now and the January 14-15, 2013 conference and the March 21,
2013 hearing on Plaintiffs’ motion for enforcement of the Settlement Agreement should
not cause further delay in implementing the Settlement Agreement for the benefit of the
Class Members and all individuals with developmental disabilities in the State of
Minnesota.
3.

Consistent with the Court’s remarks at the December 11, 2012 Status

Conference, the parties shall submit an agenda for the January 14-15, 2013 Status
Conference to the Court on or before January 7, 2013. The Court reserves the right to
add additional items to the agenda.
4.

Within seven (7) days of completion of the conference on January 14-15,

2013, the parties shall file a stipulation or other documents with the Court reflecting the
results of the meeting, including any agreements, amendments to the Settlement
Agreement, and any other items addressing the issues of compliance and noncompliance
with the Settlement Agreement.
5.

The Court reserves the right to set an additional status conference with the

Court upon receipt of any post-conference documents from the parties.
6.

The Court assumes and expects that Roberta Opheim, the Ombudsman for

the State of Minnesota Office of the Ombudsman for Mental Health and Developmental
Disabilities, and Colleen Wieck, Ph.D., Executive Director of the Minnesota Governor’s

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Council on Developmental Disabilities, and the appropriate officials from the Department
of Human Services will be present at the conference on January 14-15, 2013.

Dated: December 20, 2012

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

MEMORANDUM
The Court will conclude its Order with a short memorandum, noting that the
parties entered into the Settlement Agreement in June of 2011, the stated intent and
purpose of which was the following:
RECITALS
***
7.
The State of Minnesota further declares, as a top concern, the
safety and quality of life of the Residents of the Facility. The State agrees
that its goal is to provide these residents with a safe and humane living
environment free from abuse and neglect. The State also agrees that its
goal is to utilize the Rule 40 Committee and Olmstead Committee process
described in this Agreement 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, its Cambridge,
Minnesota successor, or the two new adult foster care transitional homes.
(Doc. No. 104 (“Settlement Agreement”) at 3.)
With the help of the transcript from the hearing for final approval of the
Settlement Agreement that occurred on December 1, 2011, I would like the parties to
come back with the Court to that date since some would suggest we have lost our way
since December 1, 2011, given the current status of the implementation of the Settlement
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Agreement and the allegations of noncompliance by Plaintiffs.
Plaintiffs’ counsel, Shamus O’Meara, opened up the hearing on December 1, 2011
with the following statement:
Perhaps the most important aspect of this Settlement, Your Honor, is
that it is going to benefit not only all Class Members, but the approximate
100,000 people with developmental disabilities in this state and their
families. And I will be speaking to some of the statewide, really
unprecedented, provisions of the Settlement Agreement that we as
Settlement Class Counsel find to be simply wonderful.
Things such as statewide changes of the care and treatment of people
with developmental disabilities, the formation of an Olmstead Committee
in recognition of the important principles articulated by the U.S. Supreme
Court in the Olmstead versus L.C. case.
Rule 40, which is an important rule that governs the care and
treatment of people with developmental disabilities is going to be looked at
by a committee. And there will be an administrative process with public
comment that would hopefully lead to some changes that would imbue the
best practices that the professionals around these issues care about and will
comment on. And then, of course there is regular reporting to this Court
over the next two years, and I think that is an important aspect.
So, what does this mean? This means from our perspective as
Settlement Class Counsel, that the Class Action Settlement Agreement and
its unprecedented comprehensive positive changes in the daily protections
afforded not only Class members but all people with developmental
disabilities in this state is reasonable and meaningful.
(Doc. No. 146 (“Tr.”) 7-8.)
Plaintiffs’ counsel went on to state:
There are thousands of people that work in our State Government, in
our Federal Government, and in our local agencies, who have provided
justice by choosing a career that highlights the care and treatment of people
with developmental disabilities.
It is important to recognize that it is just not on one side of the aisle,
it is on all sides of the aisle that justice is done. It is the lawyers in State
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Government whom we worked with for two and half years. It is the
lawyers for the doctors that were sued as individual defendants that we
have worked with and dialogued for two and half years. And it is the
exertions of these individuals, in partnership with the Federal Court, that
spent many, many hours in facilitating communication. And with
consultants that worked with us. And with people who have tirelessly
worked on these issues for years upon whose shoulders we stand today that
brings us to an agreement that I think is unprecedented that will benefit
hundreds of thousands of people in this state.
(Tr. 12-13.)
Counsel for the State of Minnesota, Steven Alpert, concurred with the remarks of
Plaintiffs’ counsel and made the following statement:
Thank you. May it please the Court? My name is Steve Alpert. I
am the Assistant Attorney General. I represent the Minnesota Department
of Human Services and other individuals and Defendants in this particular
case.
I would like to recognize Anne Barry, who is the Deputy
Commissioner of Human Services, who has been involved in this case
throughout and will continue to be personally involved in this case. She
will specifically address the Court with her comments later.
I would also like to specifically recognize my colleague Ken
Kohnstamm, also an Assistant Attorney General with the Minnesota
Attorney General’s Office representing the Department. He was seated at
counsel table.
For both of us, this has been particularly gratifying that we are
working on not only a very important case, but we are working on a case
where we are able to make a difference in people’s lives. We are not just
for once talking about money. We are not just talking about Government
taking a position and refusing to budge, you know, under the typical
stereotype. And we both put a lot of time and effort and personal
involvement in this matter. Because in the end, as the Court has seen from
the presentation and from all of the discussions and documents, this is an
important settlement. It will make a huge difference for people in a
positive manner.

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I would like to, again, thank Ms. Barry. I would like to thank the
Department and all of the people from the Department that have been
working with us and will continue to work with us, the other parties, and
the consultants who had not only the willingness, but the ability to work
through some complex issues and reach an agreement. And again, it will
greatly improve the quality in care of the lives of a large number of persons
with disabilities, not only in Minnesota, but we have people that come
through Minnesota. And it will impact them, as well. And we think that
this agreement will set the tone for other states, as well.
(Tr. 26-27.)
Finally, all parties were very clear at the hearing on December 1, 2011 that the
goal of everyone, including the Court, was to ensure that the spirit and the intent of the
Settlement Agreement, not just the words of the Settlement Agreement, would be
implemented going forward. Counsels’ statements and their passion and sincerity have
been present in the settlement discussions in this case from day one, and were also
present on December 1, 2011.
The challenge to each of the parties, the lawyers, and, yes, the Court, is to now
carry out that same passion, spirit, and intent of the Settlement Agreement in order for the
Settlement Agreement to amount to more than mere words, and so that the large number
of individuals with disabilities will truly benefit from the Settlement Agreement. The
Court is certain that all parties agree that justice requires that we do so.
D.W.F.

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