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

Filing 266

ORDER (see Order for details). (Written Opinion.) Signed by Judge Donovan W. Frank on 01/22/2014. (RLB)

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

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.

Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq.,
O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Steven H. Alpert and Scott H. Ikeda, 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.

This Order is issued in response to the Court Monitor’s Report to the Court:
Comprehensive Plan of Action (November 27, 2013) (“Report”) (Doc. No. 254), filed
pursuant to the Court’s August 28, 2013 Amended Memorandum and Order (“August 28,
2013 Order”) (Doc. No. 224). Moreover, by way of context, the Court also issued an
Order on October 17, 2013 (“October 17, 2013 Order”) (Doc. No. 237), giving
responsibility and authority to the Court Monitor to finalize the Minnesota Department of
Human Services’ (“DHS”) plan for the Settlement Agreement Evaluation Criteria and
MSHS-Cambridge closure, which was submitted by DHS on October 15, 2013. Pursuant
to the Court’s October 17, 2013 Order, the Court respectfully directed the Court Monitor
to implement the Order in cooperation with Deputy Commissioner Anne Barry. That
cooperation was to include ensuring the availability of appropriate DHS staff and the
provision of documents and other resources requested by the Court Monitor.
Subsequently, on November 1, 2013, the Court entered an Order, (Doc. No. 248),
giving responsibility and authority to the Court Monitor to finalize the DHS’s plan for the
Settlement Agreement Evaluation Rule 40 Modernization Plan, which was submitted by
DHS on October 30, 2013, (Doc. No. 244), pursuant to the August 28, 2013 Order. The
Court further directed in its November 1, 2013 Order that the Court Monitor implement
its Order in cooperation with Deputy Commissioner Anne Barry, including, again, the
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availability of the appropriate DHS staff and provision of documents and other resources.
The Court, at that time, also directed Plaintiffs’ Class Counsel and the consultants to the
parties, Roberta Opheim and Dr. Colleen Wieck, to participate in the process.
The August 28, 2013 Order contemplated three 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. After filing the first two
of the proposed plans (DHS’s Part 1 and Part 2 plans are at Doc. Nos. 244 & 246),
Defendants conceded that they were unable to produce adequate implementation plans as
to the first two elements. Consequently, with agreement of the Defendants, the Court
ordered the Court Monitor to finalize the plans.
Plaintiffs’ Class Counsel submitted its response on behalf of the Class to the Court
Monitor’s Report. Defendants’ response, dated December 13, 2013, is a two-page letter,
accompanied by a 94-page response suggesting proposed changes in the Court Monitor’s
Comprehensive Plan of Action.
It is difficult for the Court to look back on the numerous orders, including its
adoption of the Jensen Settlement Agreement in December 2011, now more than two
years ago, given the Court’s view that there has been little progress toward improving the
care, treatment, and lives of Minnesota citizens with disabilities. The Court sadly
observes, as it has in a number of prior orders, that a meaningful survey of individuals
with disabilities and their families would likely challenge the notion that any true
improvement in the quality of care, treatment, and lives of Minnesota citizens with
disabilities has occurred since December 2011.
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Unfortunately, and perhaps contrary to the best interests of all parties concerned,
Defendants have filed objections to 73 pages of the 94-page response. And, of the 51
pages that they have accepted, those have only been accepted if those edits are done, in
the words of the Defendants, “for consistency with the Settlement Agreement and prior
orders of this Court.” That means that less than 10 pages of the 94-page document were
accepted by the Defendants. Plaintiffs’ Class Counsel, in a 4-page letter, has made
objections as well. Plaintiffs’ Class Counsel has asserted that “there are many proposed
provisions and language in the Comprehensive Plan of Action that appear to contradict
the provisions of the Class Action Settlement Agreement.” Plaintiffs’ Class Counsel then
goes on to assert:
Additional work is needed to harmonize the proposed Plan to the Court
ordered provisions of the Settlement Agreement. While the Settlement
Class supports the efforts of the Court Monitor to facilitate proper
implementation of the Settlement Agreement, we are concerned about
proposed Plan language which may operate to change the provisions of the
Settlement Agreement or the spirit and intent of the Settlement Agreement.
Based upon the Court’s review of all submissions related to the implementation
plans, while fully supporting the Court Monitor’s approach and without agreeing or
disagreeing with the responses of the Plaintiffs or Defendants, and being otherwise duly
advised in the premises, the Court hereby enters the following:

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ORDER
1.

Immediate Conference of All Parties.

The Court respectfully directs that Plaintiffs’ Class Counsel, Defendants, and
consultants Roberta Opheim and Dr. Colleen Wieck participate in a face-to-face
conference with the Court Monitor within the next three-week period unless, based upon
the unavailability of one or more parties or stipulation of the parties, all parties request a
later time. The Court will make its conference room available at the Warren E. Burger
Federal Building and United States Courthouse in St. Paul, Minnesota. The Court
expects the parties to communicate and negotiate in good faith to once and for all
establish a final implementation plan as to parts 1 and 2. The Court has entered a
separate order addressing part 3 of the Comprehensive Plan of Action, which is the
Olmstead Plan. In the event the parties cannot once and for all agree on establishment of
an Implementation Plan, then the Court will do so after 90 days from the date of this
Order.
Within one week of the completion of the conference ordered herein, the Court
Monitor shall submit a final report to the Court addressing the Implementation Plan. The
Court will permit each party to submit a response, including the Court’s consultants, if
they wish, within one week of receipt of the Court Monitor’s final report. The time has
come to truly serve the best interests of individuals with disabilities within the State of
Minnesota. Cooperation and communication of all parties are absolutely essential if that
is to occur.

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2.

The Court reserves the right to extend the jurisdiction of this Court beyond

December 2014. The Court also reserves the right to vacate specific provisions of the
Settlement Agreement in the event no Implementation Plan is agreed to.
3.

Under separate order, the Court will address the Motion for Sanctions and

Plaintiffs’ request for attorney fees, as it said it would, in the Court’s December 17, 2013
Order.

Dated: January 22, 2014

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

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