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

Filing 435

ORDER. 1. The Court DECLINES TO ADOPT the States Proposed Olmstead Plan (Doc. No. [401-1]). 2. The parties shall submit a revised Olmstead Plan to the Court by July 10, 2015. The revised Olmstead Plan shall encompass the requirements of the Settlemen t Agreement and prior orders of this Court and shall respond to previously identified gaps and deficiencies in the States proposed Olmstead Plan. 3. In lieu of contempt and other sanctions at this time, the Court requires Defendants to fulfill their obligations in a timely manner for the Courts review and approval; attend any status conferences that may be scheduled by the undersigned or Magistrate Judge Becky R. Thorson regarding the Olmstead Plan; and actively seek input from the consultants t o the parties, Dr. Colleen Wieck and Roberta Opheim, in this process. 4. The Court expressly reserves the right to issue an order to show cause or impose sanctions, depending upon the status of compliance with the specific provisions of the Settlement Agreement and the Courts orders, as noted above. (Written Opinion). Signed by Judge Donovan W. Frank on 5/6/2015. (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/BRT)

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.

Nathan A. Brennaman, Scott H. Ikeda, Anthony R. Noss, and Aaron Winter, 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 State of Minnesota’s March 20, 2015 proposed
modifications to Minnesota’s Olmstead Plan (“Proposed Olmstead Plan”). (Doc.
No. 401-1.) For the reasons discussed below, the Court declines to approve the Proposed
Olmstead Plan as it is currently written.
BACKGROUND
In June 2011, the parties to this class action litigation entered a Stipulated Class
Action Settlement Agreement (“Settlement Agreement”), which includes the following
provision 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. 581 (1999).
(Doc. No. 104 at 18.) Based upon the presentations and submissions of the parties,
including counsel’s remarks at the Final Approval Hearing, 1 the Court approved the
Settlement Agreement on December 5, 2011. (See Doc. No. 136.)
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At the Final Approval Hearing on December 1, 2011, both Plaintiffs and
Defendants alike hailed the Settlement Agreement as one which would fundamentally
improve the lives of individuals with disabilities in Minnesota and serve as a national
model.
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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. 104 at 18.) After the State and DHS failed to develop and implement a
comprehensive Olmstead Plan 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 State’s proposed Olmstead Plan,
subject to certain modifications, and directed the State to file an updated version of the
Olmstead Plan by July 15, 2014. (Doc. No. 265 at 3-4.)
On July 10, 2014, the State filed a modified version of its Olmstead Plan. (See
Doc. No. 326-1.) On September 18, 2014, the Court declined to approve the State’s
modified Olmstead Plan after finding significant deficiencies, including a lack of
measurable goals and a lack of accurate reporting, and directed the State to file a revised
version of the Olmstead Plan by November 10, 2014. (Doc. No. 344 at 4-8.)
On November 10, 2014, the State filed a revised Olmstead Plan. (See Doc.
No. 369-1.) On January 9, 2015, the Court provisionally approved the State’s revised
Olmstead Plan, subject to certain modifications, and directed the State to file an updated
version of the Olmstead Plan by March 20, 2015. (Doc. No. 378 at 14.)
On March 18, 2015, two days before the March 20, 2015 deadline, the State
submitted a letter to the Court seeking “clarification on the scope of the Court’s January 9,
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2015 Order requiring the State to submit a revised Olmstead Plan by March 20, 2015”
and requesting “the Court to extend the March 20 due date to allow for clarification of the
Court’s January 9 Order.” (Doc. No. 398 at 1.) On March 19, 2015, the Court denied the
State’s request in its entirety. (Doc. No. 400 at 5.)
On March 20, 2015, the State filed the Proposed Olmstead Plan that is now before
the Court for review. (Doc. No. 401-1.) In response to the State’s Proposed Olmstead
Plan, the Plaintiff Class filed objections with the Court, asserting that:
[T]his Court’s specific, important guidance has been repeatedly rejected by
DHS which now offers another Revised Olmstead Plan without the
fundamental measures needed to be successful, and accountable, to the
people with disabilities and their families DHS seeks to serve. The result
remains an incomplete plan in violation of the Jensen Settlement
Agreement, the many prior Orders of this Court, and the civil rights of
people with disabilities in Minnesota.
(Doc. No. 412 at 3.) Accordingly, the Plaintiff Class requests that the Proposed Olmstead
Plan “be rejected as insufficient and in violation of the Jensen Class Action Settlement
Agreement.” (Id.)
On April 6, 2015, interested nonparties to this litigation, Advocating Change
Together (“ACT”) 2 and the Minnesota Disability Law Center (“MDLC”) of
Mid-Minnesota Legal Aid 3 filed letter responses to the Proposed Olmstead Plan. (See
Doc. No. 408; Doc. No. 409.) ACT’s concerns focus on the Proposed Olmstead Plan’s
Community Engagement Section, specifically, the lack of supports and follow-up for
2

ACT’s mission is to “[e]mpower[] people with disabilities to advocate for
themselves.” (Doc. No. 408 at 1.)
3

MDLC “provides legal and policy advocacy for individuals with all types of
disabilities statewide on issues related to their disabilities.” (Doc. No. 427 at 2.)
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person-centered plans and the lack of recognition of different engagement levels. (See
Doc. No. 408 at 1-2.) MDLC’s concerns pertain primarily to the lack of “sufficient
sound baseline data, measurable goals, or outcomes.” (Doc. No. 409 at 2; see also Doc.
No. 427 at 16 (criticizing the Proposed Olmstead Plan for its failure to provide
“necessary detail, accurate baseline data, and adequately robust goals”); id. at 16-22
(summarizing the deficiencies of the Proposed Olmstead Plan).) Consequently, MDLC
contends that “[t]he Court should reject the State’s proposed plan but allow the State to
continue developing a plan that fully complies with applicable law and that delivers upon
the promises of the Olmstead decision and the Jensen settlement.” (Doc. No. 427 at 2.)
On April 14, 2015, the Court Monitor filed his Report to the Court: Verification
of Representations by the State, in which he observes that “[t]he current proposed revised
Plan does not comply with the Court’s orders.” (Doc. No. 414 at 16.) In light of this
observation, the Court Monitor recommends that “[t]he State should revise the entire
Olmstead Plan on a short timetable in accordance with the Court’s orders[.]” (Id. at 31.)
DISCUSSION
The Court has repeatedly provided Defendants with the standards against which
the Olmstead Plan is to be measured. (See, e.g., Doc. No. 212 at 9; Doc. No. 265 at 2-4;
Doc. No. 344 at 2-7; Doc. No. 378 at 4-14.) As the Court has previously stated, “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.” (Doc. No. 344 at 5.) “Vague assurances of future integrated options
is insufficient; to be effective, the Proposed Olmstead Plan must demonstrate success in
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actually moving individuals to integrated settings in furtherance of the goals.” (Id.) In
addition, reports to the Court must be accurate, complete, and verifiable. (Id. at 6.) The
Court has provided numerous illustrative examples of the application of these standards
in previous orders. (See, e.g., Doc. No. 344 at 4-7; Doc. No. 378 at 4-14.)
Comments submitted by the Plaintiff Class, the Court Monitor, consultants to the
parties, Dr. Colleen Wieck and Roberta Opheim, and interested nonparties in response to
previous versions of the Olmstead Plan have also clearly delineated areas of concern and
highlighted numerous problems with the State’s proposed modifications. (See, e.g., Doc.
No. 274-1; Doc. No. 275; Doc. No. 276; Doc. No. 332; Doc. No. 369; Doc. No. 384.)
After carefully reviewing the Proposed Olmstead Plan, the Court concludes that
the Proposed Olmstead Plan does not comply with the comprehensive standards and
requirements set forth in the Settlement Agreement, Olmstead v. L.C., 527 U.S. 581
(1999), and in numerous prior orders of this Court. The Court has detailed with
specificity the deficiencies of previous submissions by the State based on these
requirements for the Olmstead Plan. Without citing each instance in which the Proposed
Olmstead Plan fails to meet these requirements, the Court finds that the State’s
submission as a whole fails to meet the above standards. To the extent that Defendants
request “further clarifications” of these standards (see Doc. No. 401 at 1), Defendants’
request is denied. The Court encourages Defendants to review the above-named
requirements, the Court’s previous orders, and review and revise its Olmstead Plan
accordingly to comply with these requirements.

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CONCLUSION
The Court reminds Defendants of their promise to “develop and implement a
comprehensive Olmstead Plan” more than three years ago at the time of the Settlement
Agreement. (See Doc. No. 104 at 18.) The Court expects Defendants to timely fulfill
their obligations under the Settlement Agreement and to promptly comply with the
Court’s orders. The Court, in turn, has an “obligation to oversee, facilitate, and . . .
enforce compliance with the terms of th[e] Settlement Agreement that will benefit so
many for years to come.” (See Doc. No. 224 at 10 (citing Doc. No. 159 at 12; Doc.
No. 188 at 3).)
The Court has repeatedly expressed its concerns regarding Defendants’ pattern of
noncompliance with the terms of the Settlement Agreement that were announced at the
Final Approval Hearing before this Court on December 1, 2011, and reaffirmed in this
Court’s numerous subsequent orders. (See, e.g., Doc. No. 188; Doc. No. 205, Doc.
No. 212, Doc. No. 223, Doc. No. 259, Doc. No. 368, Doc. No. 400.) More recently, the
Court has expressed its concern regarding Defendants’ evident unfamiliarity or
unawareness of this Court’s rules and orders regarding filing deadlines and the Local
Rules regarding motions for clarification or reconsideration. 4

4

The Court is troubled by Defendants’ apparent disregard for the established rules
and procedures set forth in the Local Rules and the Court’s prior orders. (See, e.g., Doc.
No. 398; Doc. No. 429, Ex. A.) However, the Court has previously notified the parties
that issues relating to “compliance with federal rules and procedures regarding formal
and informal submissions to the Court” and “compliance with the provisions of the
Settlement Agreement and the Court’s Orders” will be addressed at the Status Conference
on May 28, 2015. (See Doc. No. 421 at 2.)
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The Court urges the State to apply the same passion, care, and concern for
individuals with disabilities that the State proclaimed at the time of the Settlement
Agreement. Nearly three years have passed since the Court approved the Settlement
Agreement, and yet the record before the Court indicates that many of the improvements
heralded by the State have yet to be realized. As the Court has previously stated, “[t]he
challenge to each of the parties, the lawyers, and, yes, the Court, is to now carry out that
same passion, spirit, and intention 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.” (Doc.
No. 188 at 10.)
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 to develop and implement an improved Olmstead Plan. The State
must demonstrate its commitment to fulfill the promise of Olmstead and ensure that the
Settlement Agreement and Olmstead Plan will improve the lives of individuals with
disabilities across the State. Justice requires no less.
ORDER
Based upon the presentations and submissions of the parties and the Court Monitor,
and given the continued concerns of this Court relating to the status of the case and
Defendants’ noncompliance with the Settlement Agreement; and the Court being
otherwise duly advised in the premises, IT IS HEREBY ORDERED that:

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1.

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

(Doc. No. [401-1]).
2.

The parties shall submit a revised Olmstead Plan to the Court by July 10,

2015. The revised Olmstead Plan shall encompass the requirements of the Settlement
Agreement and prior orders of this Court and shall respond to previously identified gaps
and deficiencies in the State’s proposed Olmstead Plan.
3.

In lieu of contempt and other sanctions at this time, the Court requires

Defendants to fulfill their obligations in a timely manner for the Court’s review and
approval; attend any status conferences that may be scheduled by the undersigned or
Magistrate Judge Becky R. Thorson regarding the Olmstead Plan; and actively seek input
from the consultants to the parties, Dr. Colleen Wieck and Roberta Opheim, in this
process.
4.

The Court expressly reserves the right to issue an order to show cause or

impose sanctions, depending upon the status of compliance with the specific provisions
of the Settlement Agreement and the Court’s orders, as noted above.
Dated: May 6, 2015

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

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