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

Filing 340

ORDER. 1. The Court APPROVES the Court Monitor's Report to the Court: Community Compliance Review (Doc. No. 327 ). (See Order for additional information.) (Written Opinion). Signed by Judge Donovan W. Frank on 9/3/2014. (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

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.

INTRODUCTION
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
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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

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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.)
BACKGROUND
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

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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 “with the sluggish pace of implementation of the specific terms of the Settlement
Agreement and the resulting noncompliance.” (Id.)
The Court Monitor has similarly expressed concerns with non-compliance. In a
June 11, 2013 Status Report on Compliance, the Court Monitor cited non-compliance in
all areas under transition planning. (Doc. No. 217 at 103-08.) After finding that “[g]aps
between the County service systems and the DHS hinder effective and timely transition
planning and the development of appropriate individual placements,” the Court Monitor
reported that “County case management must be revised to enable compliance.” (Id. at
104, 106.) The Court Monitor reiterated these “past and current Transition Plan
concerns” in its September 23, 2013 Recommendation to the Parties: Transition Planning
and the Re-purposing of MSHS-Cambridge. (Doc. No. 226 at 3.)
In response to the Court Monitor’s June 11, 2013 Status Report on Compliance,
the DHS commissioned an independent review of the transition planning by the
University of Minnesota’s Institute on Community Integration (“ICI”). On April 30,
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2014, ICI issued its Independent Review of Transitions: Three Individuals with
Developmental Disabilities Who Moved from the Minnesota Security Hospital to the
Community, which concluded that transitions were not completed with a person-centered
plan or an Olmstead analysis and that moves to the community failed to comply with the
required transition planning pursuant to the Settlement Agreement. (Doc. No. 301-20.)
Regrettably, nothing in the record demonstrates meaningful, let alone best efforts,
to train and educate the county systems. The Court can no longer tolerate continued
delay in implementation of the Settlement Agreement. Adherence to the Court’s Orders
by the DHS officials and staff at all levels is essential, not discretionary. The interests of
justice and fairness to each Class member and similarly situated individuals requires no
less.
DISCUSSION
While acknowledging that there have been some recent positive developments, the
Court Monitor finds that the DHS has failed to comply with regard to the support of
individuals who moved from the METO and MSHS-Cambridge institutions into the
community. 1 (Doc. No. 327 at 3-4.) The Court Monitor also finds that the State has
failed to comply with the transition elements of the Settlement Agreement with regard to
providing adequate and appropriate transition plans, protections, supports, and services
consistent with each person’s individualized needs. (Id. at 19.)
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METO “closed” on June 30, 2011, several days after the Settlement Agreement
was filed with the Court. MSHS-Cambridge “opened” the next day with the same clients
and staff, and in the same facilities.

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The Court Monitor further finds that Minnesota counties 2 are not serving clients in
compliance with the Court’s Orders by failing to implement the person-centered planning
and transition requirements of the Settlement Agreement. (Id. at 3.) Among other
deficiencies, the Court Monitor finds that community support services are not
individualized and do not meet professional standards as required by the Court’s Orders.
(Id. at 4.) As a consequence of these deficiencies, the Court Monitor concludes that
“[f]or some, their services are more life-wasting than life-fulfilling.” (Id.)
The Court Monitor also finds that providers and case managers “generally have no
knowledge of the transition planning elements of the settlement, or what is required in
transition, or that individuals discharged from MSHS-Cambridge have entitlements under
the settlement, or the identities of the individuals who have those entitlements” and
“have not been trained regarding these matters.” (Id. at 14.) Counties, the Court Monitor
observes, have not been informed by the DHS regarding the Settlement Agreement’s
requirements, the Court Monitor’s findings, or the Court’s Orders. (Id. at 15.)
The Court concludes that a remedy addressing the non-compliance is appropriate.
Multiple admonitions to the DHS have been insufficient to secure effective action by the
DHS to close the significant gaps between its stated intentions and actions. Continued
2

In Minnesota, counties are instruments of the State and have disability services
responsibilities enmeshed with those of the DHS. The Commissioner of the DHS has
extensive authority to supervise all non-institutional services to individuals with
disabilities. Minn. Stat. § 256.01. County case managers coordinate and ensure
compliance. Counties also monitor services provided to individuals and collaborate in
the development and annual review of the individuals’ coordinated service and support
plan and habilitation plan. If a contracted provider fails to carry out its responsibilities,
case managers are authorized to take action. See Minn. Stat. §§ 256B.092 and 245D.

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implementation delays can no longer be tolerated. More importantly, the dignity, quality
of life, and best interests of every Class Member and similarly situated individuals with
disabilities hinge on fulfillment of the promises made by Defendants at the fairness
hearing in this matter.
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, Dec. 1, 2011 Final Settlement Hearing Transcript, at 13:8-9,
27:24.) The Plaintiff Class stated that the settlement’s “unprecedented comprehensive
positive changes” would benefit “not only Class members, but all people with
developmental disabilities in this state.” (Id. at 8:7-10.) Defendants concurred with the
Plaintiff Class, 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 agreement will set
the tone for other states, as well.” (Id. at 10:20-25.) The Court is quite certain that, if
surveyed, the Plaintiff Class and their families, with few exceptions, would confirm that
all of these well-intentioned proclamations have not occurred.
In refraining from issuing contempt and other punitive sanctions for the most
recently established non-compliance, at least at this time, the Court acknowledges the
Court Monitor’s report of recent positive developments and the DHS’ recognition “that it
must do more to ensure that the counties comply with the court’s mandates.” (Doc. No.
327 at 3.)
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However, the Court is obligated to take some action with the objective of
increasing the Court Monitor’s responsibilities to: (1) oversee Defendants and ensure
their accountability; and (2) expedite prompt and meaningful compliance. Consequently,
the Court will extend its jurisdiction for a period of at least two additional years.
The Settlement Agreement provides that the Court’s jurisdiction would be
determined “as the Court deems just and equitable.” (Doc. No. 104 at 39.) Last year, the
Court extended its jurisdiction over this case for one year to December 4, 2014,
“expressly reserve[ing] the authority and jurisdiction to order an additional extension of
jurisdiction, depending upon the status of compliance by the Defendants with the specific
provisions of the Settlement Agreement, absent stipulation of the parties.” (Doc. No. 223
at 3.)
At this juncture, it is unlikely that the DHS will remedy the community
non-compliance and also achieve substantial compliance with the Comprehensive Plan of
Action, the Olmstead Plan, and the Rule 40 Modernization by December 4, 2014. For
example, the DHS references the “long-term systemic county training and compliance
issues” identified in the Court Monitor’s Community Compliance Review and suggests
that future deadlines be set in the multi-year Olmstead Plan. (Doc. No. 324 at 3.)
Extending the term of the Court’s jurisdiction is clearly necessary based on the
significant delays in implementation as well as the non-compliance with the Settlement
Agreement. The Court concludes that at least a two-year extension is necessary in order
for the Court to oversee and direct the DHS to accelerate its efforts to comply with the
Settlement Agreement and to fulfill the promises and proclamations made by the DHS at
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the time of the fairness hearing when the Settlement Agreement was approved by the
Court. Moreover, the Court concludes that individuals in the field, 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, must have significant input in implementing the
Settlement Agreement.
The Court Monitor has continued to serve the Court, pursuant to the Court’s
July 17, 2012 Order, in substantial part because of the noncompliance of the DHS. With
few exceptions, his findings and recommendations have generally been received by the
parties with little or no objection. The Court Monitor’s role has been to “assist and
inform the Court on the implementation of the Settlement Agreement’s requirements”
and to report, monitor, and make recommendations to the Court and the parties. (Doc.
No. 159 at 12.) Given the record since that appointment, and the circumstances described
in the Court Monitor’s Community Compliance Review, the Court finds that a more
substantial role is necessary.
Regarding the DHS’ failure to ensure licensure of MSHS-Cambridge, the Court, in
its December 17, 2013 Order, “reserve[d] ruling on what sanctions are appropriate”
pending receipt of information on the DHS’ compliance with implementation plans.
(Doc. No. 259 at 7.) While the extension of jurisdiction may be considered a sanction
related to the circumstances described in this Order, the Court also reserves the right to
entertain a motion by the Plaintiff Class to recover attorney fees that have been incurred
directly related to the non-compliance of the DHS as well as to evaluate an increased role
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for the Minnesota Governor’s Council on Developmental Disabilities as well as the
Office of the Ombudsman for Mental Health and Developmental Disabilities. The Court
will also consider whether any additional funding will be necessary given justifiable
reliance by a number of individuals, including the Court Monitor and the DHS officials,
on these two offices.
Based upon the presentations and submissions of all parties, including the Court
Monitor’s Community Compliance Review, the Court having again reviewed the history
of the case, and the Court being otherwise duly advised in the premises, the Court hereby
enters the following:
ORDER
1.

The Court APPROVES the Court Monitor’s Report to the Court:

Community Compliance Review (Doc. No. [327]).
2.

The Court Monitor shall make findings of compliance concerning the

Defendants’ activities under the Settlement Agreement, the Comprehensive Plan of Action,
which includes, among other things, the Olmstead Plan, the rules proposed or adopted under
the Rule 40 Modernization requirement, and other Orders of the Court. In addition, the
Court Monitor shall make recommendations that will facilitate the goals and objectives of
the Court’s Orders, including recommendations for contempt, sanctions, fines or
additional relief. The Court Monitor may continue to issue reports on compliance and
other issues in this case in his discretion; in light of the requirements in this Order,
quarterly compliance reports by the Court Monitor are no longer required. The Internal
Reviewer, Dr. Richard Amado, shall continue to issue his reports to the Court Monitor.
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The Court Monitor shall also continue to issue reports on compliance and other issues in
this case at his discretion.
3.

The Court Monitor has the authority necessary to facilitate and assist

Defendants to achieve substantial compliance with Defendants’ obligations under the
Court’s Orders.
4.

The Court Monitor shall:
a.

Oversee the timely implementation of all procedures and

activities related to all outstanding obligations under the Court’s Orders.
b.

Oversee the activities of the Defendants in order to ensure

and affirm that the service system provides services and support that
comply with the Court’s Orders.
c.

Oversee the activities of the Defendants, including their

oversight and monitoring, in order to ensure that their supervision and
regulation of counties, contractors, providers, and agents results in
substantial compliance with the Court’s Orders.
d.

Oversee the activities of the Defendants related to their

communications with other state agencies necessary to achieve substantial
compliance with the existing Court’s Orders.
e.

Review existing data collection mechanisms, information

management, performance standards, provider review, and quality
improvement systems, and, if necessary, identify specific improvements to
achieve substantial compliance with the Court’s Orders.
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f.

Supervise compliance activities by the Defendants with

respect to the Court’s Orders.
g.

Facilitate efforts of the Defendants to achieve substantial

compliance with the Court’s Orders at the earliest feasible time.
h.

Evaluate the adequacy of current activities and the

implementation of remedial strategies to facilitate substantial compliance
with the existing Court’s Orders.
i.

Propose to the Court actions that could be taken to more

rapidly achieve substantial compliance, including the need for any
additional Court Orders. In developing these actions, to the extent the
Court Monitor deems appropriate, he may:
(1)

Develop specific outcome measures or

standards of compliance for those areas in which such
outcome measures or standards would assist in the
determination of substantial compliance;
(2)

Encourage and allow the Defendants in the first

instance to propose timelines, outcome measures, or standards
of compliance, should they desire to do so; and
(3)

Include, when he deems appropriate, timetables

for implementation, descriptions of measures necessary to
bring the Defendants into substantial compliance or to
overcome obstacles to substantial compliance.
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5.

The Court Monitor may make formal, written recommendations if the

Court Monitor: (a) determines that any action necessary to achieve substantial
compliance with an outstanding obligation under the Court’s Orders is not being
implemented or is inadequately implemented; (b) finds that Defendants are violating any
provision of the Court’s Orders; or (c) acts on a party’s submission or a sua sponte
consideration of a dispute. Such recommendations shall include consideration of the
appropriateness of contempt, sanctions, fines, or additional relief. Such
recommendations may also include timetables for implementation and descriptions of
measures necessary to bring the Defendants into substantial compliance or to overcome
obstacles to substantial compliance.
6.

The Court Monitor shall serve for as long as necessary for Defendants to

achieve substantial compliance. However, it is expected that Defendants will
substantially comply with the Court’s Orders by December 4, 2016. Pursuant to the
Settlement Agreement § XVIII.B and § XVIII.E, and the Court’s August 28, 2013 Order,
the Court’s jurisdiction is extended to December 4, 2016, and the Court expressly
reserves the authority and jurisdiction to order an additional extension of jurisdiction,
depending upon the status of the Defendants’ compliance and absent stipulation of the
parties.
Dated: September 3, 2014

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

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