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

Filing 344

ORDER. 1. The Court DECLINES TO ADOPT the State's Proposed Olmstead Plan (Doc. No. [326-1]) at this time. 2. The parties shall submit a revised Olmstead Plan to the Court Monitor by November 10, 2014. (Written Opinion). Signed by Judge Donovan W. Frank on 9/18/2014. (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 is the Court Monitor’s August 6, 2014 Report to the Court:
Approval of Revised Olmstead Plan (“Olmstead Plan Report”) (Doc. No. 333)
recommending Court approval of the State of Minnesota’s proposed modifications to
Minnesota’s Olmstead Plan (“Proposed Olmstead Plan”) (Doc. No. 326-1). For the
reasons discussed below, the Court declines to approve the Proposed Olmstead Plan as it
is currently written.
BACKGROUND
In the Court’s December 5, 2011 Final Approval Order for the Stipulated Class
Action Settlement Agreement (“Settlement Agreement”), the Court ordered the following
with respect to the Olmstead Plan:
Within eighteen (18) months of the Court’s approval of this Agreement, the
State and the Department shall develop and implement a comprehensive
Olmstead Plan that uses measurable goals to increase the number of people
with disabilities receiving services that best meet their individual needs and
in the “Most Integrated Setting,” and is consistent and in accord with the
U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 582 (1999).
(Doc. No. 136, Ex. A at 18.) Since the Court’s December 5, 2011 Order, the Court and
the Court Monitor have reiterated these requirements in numerous orders and reports.
(See, e.g., Doc. No. 311 at 2 (reiterating that the Olmstead Plan must include “measurable

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goals” and providing examples of such goals); Doc. No. 212 at 9 (reiterating that a
comprehensive Olmstead Plan must use measurable goals).)
Pursuant to the terms of the Settlement Agreement, the State and the Department
of Human Services (“DHS”) were to develop and implement a comprehensive Olmstead
Plan within eighteen months of the Court’s approval of the Settlement Agreement. (Doc.
No. 136, Ex. A at 18.) After the State and DHS failed to complete this directive by the
original due date, the Court ordered the State and DHS to file the Olmstead Plan with the
Court by November 1, 2013—five months after the due date—for the Court’s review and
approval. (Doc. No. 224 at 5.) The State submitted the Olmstead Plan to the Court on
October 31, 2013. (Doc. No. 246-1.) On January 22, 2014, the Court provisionally
approved the Olmstead Plan, subject to the Court’s review of the State’s modifications
and any submissions by Plaintiffs’ Class Counsel, and directed the State to file a revised
Olmstead Plan by July 15, 2014. (Doc. No. 265 at 3-4.)
On July 10, 2014, the State filed the Proposed Olmstead Plan that is now before
the Court. (Doc. No. 326-1.) In response to the Proposed Olmstead Plan, the Plaintiff
Class submitted a letter to the Court on July 24, 2014, “reiterat[ing] the Settlement Class
positions . . . in [its] prior letters to the Court and Court Monitor concerning the Olmstead
Plan” (Doc. No. 332 at 11) and observing that “issues [] remain, including a necessary
recommitment and focus needed to complete and implement an Olmstead Plan using
measurable goals” (id. at 10). Specifically, the Plaintiff Class referenced a February 25,
2014 letter to the Court in which the Plaintiff Class expressed concerns that “the
Olmstead Plan be strategic, measurable, and clearly state who is responsible, with a
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listing of specific timelines, and how the Plan will be implemented, and specific
resources needed” (Doc. No. 276 at 3), and an October 22, 2013 letter to the Court
Monitor in which the Plaintiff Class criticized DHS’ “cavalier approach to the
development of the Court ordered Olmstead Plan” and the resulting “rushed, incomplete
and deficient Olmstead Plan” (Doc. No. 276-1 at 2, 6).
On August 6, 2014, the Court Monitor filed the Olmstead Plan Report with the
Court, recommending final approval of the Proposed Olmstead Plan. (Doc. No. 333 at
2.) However, in the Olmstead Plan Report, the Court Monitor observed that “[s]ome
concerns remain.” (Id. at 3.) The Court Monitor recommended “refinement with regard
to [the Olmstead Plan’s] structure and specificity,” including the need for measurable
goals, new methods for presenting and reporting information, and better phrasing of
commitments to enable compliance evaluation. (Id. at 7.)
DISCUSSION
The Court finds that the Proposed Olmstead Plan contains significant shortfalls
that require modification to comply with the comprehensive standards articulated in the
Settlement Agreement and in subsequent Court Orders and Court Monitor Reports. The
Court emphasizes two particularly deficient areas of concern: (1) the lack of measurable
goals; and (2) the lack of accurate reporting.
I.

Measurable Goals
First, the Proposed Olmstead Plan lacks measurable goals. As stated above, the

Court and the Court Monitor have repeatedly emphasized the need for specific,
measurable goals to achieve compliance with the Settlement Agreement. However, the
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Proposed Olmstead Plan lacks specificity as to how the goals will be accomplished. The
Proposed Olmstead Plan merely states processes to establish baselines, but fails to
provide comprehensive baseline data in almost all areas to allow measurement of whether
the goals are being met. This is insufficient to comply with the Settlement Agreement
requirements for measurable goals to achieve its purposes.
To comply with the Settlement Agreement’s measurable goals requirements, the
Proposed Olmstead Plan must contain concrete, reliable, and realistic commitments,
accompanied by specific and reasonable timetables, for which the public agencies will be
held accountable. Vague assurances of future integrated options is insufficient; to be
effective, the Proposed Olmstead Plan must demonstrate success in actually moving
individuals to integrated settings in furtherance of the goals.
In an effort to advise the parties of the Court’s expectations, the Court describes
two examples of measurable goals based on the objectives listed in the Proposed
Olmstead Plan. First, the Proposed Olmstead Plan lists “access to dental services” for
people with disabilities as a goal. (Doc. No. 326-1 at 79.) According to the Proposed
Olmstead Plan, the State will develop an implementation plan, based on information
obtained from a legislatively-mandated study of Minnesota Health Care Program’s dental
program, that includes timelines and measurable goals, by June 30, 2014. (Id.) Based on
the record before the Court, it is unclear whether the State established a measurable goal
by June 30, 2014. To effectuate the Proposed Olmstead Plan’s goal of increased access
to dental services for people with disabilities, the Court proposes the following as an

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example of a measurable goal: “By July 1, 2015, no fewer than an additional 100 people
with disabilities will receive dental services.”
Second, with respect to employment, the Proposed Olmstead Plan states a goal of
“[e]xpanding opportunities for adults with disabilities.” (Id. at 42.) According to the
Proposed Olmstead Plan, State agencies will “identify consistent baseline measures to
assess progress on increased competitive employment of adults with disabilities
(including but not limited to people with mental illness and intellectual/developmental
disabilities)” by June 30, 2014, and “establish a baseline for the measures and establish
measurable goals to demonstrate progress in increasing competitive employment for
adults with disabilities” by September 30, 2014. (Id.) Once again, no concrete,
measurable goals are articulated. An example of such a measurable goal is the following:
“By June 30, 2015, no fewer than an additional 300 people (above the baseline) with
disabilities will be competitively employed.”
II.

Accurate Reporting
Second, and relatedly, the State must ensure accurate progress reporting. Reports

to the Court must be accurate, complete, and verifiable. The Court requires the State to
report on the following: (1) the number of people who have moved from segregated
settings into more integrated settings; (2) the number of people who are no longer on the
waiting list; and (3) the quality of life measures. With respect to the first inquiry, any
calculation must consider admissions, readmissions, discharges, and transfers—reflecting
the dynamic movement of individuals through segregated settings—to determine the net
number of people who have moved into more integrated settings. Regarding the second
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inquiry, the State must evaluate whether the movement is at a reasonable pace. Finally,
with respect to the third inquiry, the State must summarize and submit to the Court any
available data and highlight any gaps in information.
Although the Court identifies only two of the most glaring flaws in the Proposed
Olmstead Plan, the Court reminds the State of its comprehensive responsibilities under
the Settlement Agreement and the Olmstead decision. The Court urges the State to apply
the same passion, care, and concern for individuals with developmental disabilities that
the State proclaimed at the time of the Settlement Agreement. When the State assured
the Court at the time of the Settlement Agreement that the “important settlement” would
“make a huge difference for people in a positive manner” (Doc. No. 146 at 27), the Court
did not question the sincerity of the State’s declarations. However, nearly three years
have passed since the Court approved the Settlement Agreement, and yet the record
before the Court indicates that the “new and improved” Olmstead Plan heralded by the
State has yet to be realized.
Whether the Settlement Agreement and revised Olmstead Plan ultimately will
improve the lives of individuals with disabilities remains to be seen. The Court is
committed to ensure that the Settlement Agreement is not an empty promise or a
meaningless gesture to placate individuals with disabilities. As the Court has stated in
prior opinions, many individuals with developmental disabilities and their families have
lost faith in the improvements promised in the Settlement Agreement. Meaningful
progress must be realized across the State. Justice requires no less.

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ORDER
Based on the entire record of this case, IT IS HEREBY ORDERED THAT:
1.

The Court DECLINES TO ADOPT the State’s Proposed Olmstead Plan

(Doc. No. [326-1]) at this time.
2.

The parties shall submit a revised Olmstead Plan to the Court Monitor by

November 10, 2014.
Dated: September 18, 2014

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

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