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

Filing 510

ORDER. 1. The Court APPROVES the State's Olmstead Plan (Doc. No. [486-1]). 2. The Court reserves ruling on the approval of the Olmstead Plan's implementation plan because corresponding workplans are not yet submitted to the Court. (See Do c. No. 486-1 at 16.) Once these workplans are submitted, the Court will review and approve the implementation plan based on the recommendations and input of Magistrate Judge Becky R. Thorson. 3. The Court reserves the right to exercise its continuing jurisdiction with respect to the revised Olmstead Plan to ensure that compliance with the Settlement Agreement is verified going forward. This paragraph contemplates that the Court will continue to carry out its oversight responsibility to oversee the State's efforts in following through on the significant commitments it has made. (Written Opinion). Signed by Judge Donovan W. Frank on 9/29/2015. (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.

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

Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Aaron Winter, 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.
John W. Ursu, Esq., Karl C. Procaccini, Esq., and Katherine M. Swenson, Esq., Greene
Espel PLLP, counsel for Amicus Ivan M. Levy.

INTRODUCTION
Before the Court is the State of Minnesota’s August 10, 2015 proposed revisions
to Minnesota’s Olmstead Plan (“Olmstead Plan”). (Doc. No. 486-1.) For the reasons
discussed below, the Court approves the revised Olmstead Plan.
BACKGROUND
The Supreme Court’s landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999),
provided a basis for this class action litigation and the resulting Olmstead Plan before the
Court. The Olmstead case involved two women with mental disabilities who were forced
to reside in state-run segregated institutions even though their treatment providers agreed
that they could be appropriately treated in the community. Id. at 593. These women
sought to live and receive treatment in an integrated community-based setting and argued
that their confinement violated Title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12132 (“ADA”). Id. at 593-94. The Supreme Court considered the ADA and its
implementing regulations, including the requirement that “[a] public entity shall
administer services, programs, and activities in the most integrated setting appropriate to

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the needs of qualified individuals with disabilities.” Id. at 592 (quoting 28 C.F.R.
§ 35.130(d) (1998)). It held:
States are required to provide community-based treatment for persons with
mental disabilities when the State’s treatment professionals determine that
such placement is appropriate, the affected persons do not oppose such
treatment, and the placement can be reasonably accommodated, taking into
account the resources available to the State and the needs of others with
mental disabilities.
Id. at 607. This decision gave individuals with disabilities throughout the country hope to
believe that they could one day be truly integrated into society and given the same dignity
and respect afforded to all persons.
In June 2011, the parties to this class action litigation entered a Stipulated Class
Action Settlement Agreement (“Settlement Agreement”). (Doc. No. 104.) One of the
Settlement Agreement’s “System Wide Improvements” was a commitment to develop a
comprehensive Olmstead Plan to improve the lives of individuals with disabilities. The
State and the Department of Human Services (“DHS”) committed to the following:
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).

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(Id. 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.)
On May 6, 2015—more than three years after the Court’s approval of the
Settlement Agreement—the Court addressed the State and DHS’s fourth revised version
of the Olmstead Plan. 2 The Court declined to approve the State’s modified Olmstead
Plan after finding that it did 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.” (Doc. No. 435 at 6.) The Court
directed the State to file a revised Olmstead Plan by July 10, 2015, and to attend status
conferences scheduled by the Court regarding the revised Olmstead Plan. (Id. at 9.)
Between June 10, 2015 and August 10, 2015, the parties participated in mediation
meetings with Magistrate Judge Becky R. Thorson regarding the revised Olmstead Plan.

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At the Final Approval Hearing on December 1, 2011, both Plaintiffs and
Defendants alike hailed the Settlement Agreement as one that would fundamentally
improve the lives of individuals with disabilities in Minnesota and serve as a national
model. (See Doc. No. 146 at 7 (“Perhaps the most important aspect of this Settlement . . .
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.” (Attorney
Shamus P. O’Meara, representing the Plaintiffs)); id. at 27 (“[T]his is an important
settlement. It will make a huge difference for people in a positive manner. . . . And we
think that this agreement will set the tone for other states, as well.” (Assistant Attorney
General Steven H. Alpert, representing the Minnesota Department of Human Services)).)
2

For a complete procedural history of the Olmstead Plan and the Court’s prior
Orders respecting the plan, see the Court’s May 6, 2015 Order. (Doc. No. 435 at 2-4.)

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Based on the status of the mediation proceedings, the Court extended the July 10, 2015
filing deadline to August 10, 2015. (Doc. No. 472.)
On August 10, 2015, the State filed the Olmstead Plan that is now before the Court
for review. (Doc. No. 486-1.) In response to the Olmstead Plan, the Plaintiff Class
submitted letter objections to the Court on August 19, 2015. (Doc. No. 493.) On
August 27, 2015, the State filed a letter response to the Plaintiff Class’ objections. (Doc.
No. 503.) Ivan M. Levy submitted a Brief of Amicus Curiae on September 14, 2015.
(Doc. No. 506.) On September 18, 2015, the State filed a response to Mr. Levy’s
submission. (Doc. No. 508.) The Court has received and considered all of these
submissions.
DISCUSSION
The Court has previously set forth the standards against which the State’s
Olmstead Plan should be measured. As the Court has stated in prior orders, “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; Doc. No. 435 at 5.) “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.” (Doc. No. 344 at 5; Doc. No. 435 at 5-6.) 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.)

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The Plaintiff Class asserts that the State’s submission is deficient in some respects.
(See Doc. No. 493.) For example, the Plaintiff Class objects to the revised Olmstead Plan
to the extent that it fails to expressly prohibit the use of restraint and seclusion for
individuals with disabilities with a single emergency exception. (Id. at 5.) The Plaintiff
Class also objects to the waiver waiting list provisions of the Olmstead Plan. (Id.) The
Plaintiff Class further expresses concerns regarding the State’s funding commitment and
implementation plan to “ensure [the State and DHS] bring about actual tangible
achievements rather than empty statements on a piece of paper.” (Id. at 6.)
The State, on the other hand, asserts that its revised Olmstead Plan meets, and in
certain respects exceeds, the requirements set forth by the Court. (See Doc. No. 503 at 4
(“[T]he Plan is not only consistent with the Olmstead decision and the Court’s orders, but
in several respects, goes above and beyond what is required.”).) In response to the
Plaintiff Class’ objections, the State contends that its existing accomplishments and
proposed advancements in the area of restraint and seclusion meet the State’s obligations
under the Settlement Agreement and the Comprehensive Plan of Action. (See id. at 1-3.)
In particular, the State emphasizes that it “continues to press forward on this topic, with
goals that aim to further reduce the use of restraint and seclusion even in . . . limited
emergency circumstances.” (Id. at 2.) The State also asserts that its redesigned waiting
list process and ambitious goals in this area meet its responsibilities under the Settlement
Agreement, the Court’s prior orders, and “the reasonable pace standard as set forth in the
Olmstead decision.” (Id. at 4.) The State contends that it is “committed to ending the
waiting list at the briskest pace possible within available resources.” (Id.) With respect
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to the Plaintiff Class’ funding concerns, the State asserts that “[f]or the most part, there is
sufficient funding to implement the goals set forth in the Plan,” and reiterates its
commitment to secure funding not yet obtained, as outlined in the Olmstead Plan. (See id.
at 3; see also Doc. No. 486-1 at 99.)
After carefully reviewing the State’s proposed revisions to the Olmstead Plan, the
Court concludes that the State’s Olmstead Plan substantially complies with the
comprehensive standards and requirements set forth in the Settlement Agreement,
Olmstead v. L.C., 527 U.S. 581 (1999), and in prior orders of this Court. In approving
this version of the Olmstead Plan, the Court emphasizes three key changes that make it a
substantial improvement over prior submissions to the Court: (1) the addition of concrete
baseline data and specific timelines to establish measurable goals; (2) improvements to
each goal that make the Olmstead Plan not only measurable, but strategically tailored to
make a significant impact in the lives of individuals with disabilities across the state; and
(3) added commitments to make the Olmstead Plan an evolving document that will
continue to respond to the changing needs of individuals in the state over time.
First, the Court finds that the State’s revised Olmstead Plan meets the requirement
of having concrete, measurable goals with corresponding time lines. The Olmstead
Plan’s inclusion of specific measurable goals and timetables represents a marked
improvement from prior versions of the Olmstead Plan. These goals are supported by
adequate baseline data and are accompanied by concrete and reasonable deadlines for
completion. The new Olmstead Plan replaces vague assurances of future integrated
options with verifiable commitments tied to specific metrics. (See, e.g., Doc. No. 486-1
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at 45 (identifying a numeric baseline and annual goals to increase the number of
individuals with disabilities living in the most integrated setting); id. at 50-51 (identifying
numeric baselines and annual goals to increase the number of individuals with disabilities
working in competitive, integrated employment).) In this Olmstead Plan, the State
provides a rationale for each of the metrics used, explains why each metric was chosen,
and explains how each metric will adequately reflect improvement over time. (See id. at
21.) The State also clearly identifies those areas where additional data is needed to
ensure accurate measurement moving forward and commits to obtaining such data in a
timely manner. (See, e.g., id. at 52.)
Second, the Court finds that the revised Olmstead Plan includes strategic and
significant goals. Unlike prior submissions to the Court, the revised Olmstead Plan
includes specific and realistic strategies for achieving each goal, along with a clear
indication of the agencies responsible for ensuring that the goals are met. In particular,
the revised Olmstead Plan includes a commitment to utilizing detailed and strategic
workplans in accomplishing the State’s goals. (Id. at 16; 95; 124-30.) The State has
committed to developing such workplans for all areas of the Olmstead Plan and commits
to reviewing and updating these plans as needed to effectively achieve the Olmstead
Plan’s laudable goals.
Third, the revised Olmstead Plan includes several components that will ensure
continued improvements for individuals with disabilities into the future. The State views
the Olmstead Plan as “a dynamic roadmap, determining its direction from information
gained by experience implementing the Plan.” (Doc. No. 486 at 1.) To put this vision
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into practice, the State has committed to establishing an annual review process and
formal amendment process for the Olmstead Plan. (See Doc. No. 486-1 at 97.) These
processes will allow the State to ensure that the plan is both meeting its goals and
responding to the public’s needs and choices regarding any new goals that should be
included in the implementation of the plan. Key to the plan’s successful implementation
into the future is the central role of the Olmstead Implementation Office (“OIO”) with the
dual roles of “(1) quality assurance and accountability, including compliance evaluation,
verification and oversight; and (2) engagement with the community, especially people
with disabilities, including on-going management of communications and the Quality of
Life survey.” (Id. at 95.) These interrelated components of the revised Olmstead Plan
represent an ambitious commitment by the State to continually improve the lives of
individuals with disabilities many years into the future.
Finally, the Court approves the State’s Olmstead Plan over the objections of the
Plaintiff Class. The Olmstead Plan contains sufficient and reasonable measurable goals
intended to eliminate the use of restraint and seclusion in compliance with the parties’
Settlement Agreement. (See id. at 76-78.) These goals include specific numeric goals for
reducing the use of restrictive procedures by disability service providers, reducing the
number of Behavior Intervention Reporting Form reports of restrictive procedures,
completely prohibiting the use of mechanical restraint by disability service providers with

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limited exceptions to prevent serious injury, 3 and reducing the emergency use of
restrictive procedures in schools with a strategy directed at the eventual elimination of all
seclusion in schools. (See id. at 76-78, 81.) Particularly with respect to the latter, these
goals reflect the State’s desire to reasonably reduce the use of restraint and seclusion
while avoiding “serious unintended consequences” that may result from an immediate
and complete prohibition. (See Doc. No. 503 at 2.) The Court finds this approach
reasonable under the circumstances. The State’s comprehensive strategy to reduce
restraint and seclusion also reflects a collaborative effort of the Department of Human
Services, the Department of Education, the Department of Health, and the Department of
Corrections. (Doc. No. 486-1 at 81.) The Court finds that these agencies have taken
critical and appropriate steps toward eliminating the use of restraint and seclusion, and
the Court expects the progress in this topic area to continue upon the full implementation
of the Olmstead Plan.
Also, the Court finds that the State’s measurable goals related to the waiver
waiting lists are reasonable. 4 Under these goals going forward, the waiting lists will

3

These goals specifically apply to individuals and service providers governed by
Minnesota Statute Chapter 245D or Minnesota Rule Chapter 9544. (See Doc. No. 486-1
at 76-77.)
4

The Court notes the filing of a related case on the topic of the State’s waiting lists
for waiver services: Guggenberger, et al. v. State of Minnesota, et al., 15-CV-3439
(D. Minn. Aug. 28, 2015). (See Doc. No. 504.) The Court does not express any opinion
on the merits of that case through this Order.

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either be eliminated or move at a reasonable pace within a reasonable timeframe. 5 (See
id. at 59-60.) The State has committed to implementing initiatives to increase the pace of
the waiting lists, and it has taken critical steps to prioritize access to waiver funding
according to an individual’s urgency of need. (Id. at 61-62.) The State has committed to
eliminating the Community Access for Disability Inclusion (“CADI”) waiver waiting list
by October 1, 2016. (Id. at 59.) The State has also committed to eliminating the
Developmental Disabilities (“DD”) waiver waiting list by March 1, 2017 for persons
leaving an institutional setting and for persons with immediate need 6 and by June 30,
2020 for persons with a defined need. 7 (Id. at 60.) The Olmstead Plan details the State’s
rationale for these timelines, noting where funding has been authorized and describing
funding growth that may impact the DD waiver waiting list goals. (See id. at 61.)
In addition, the Court finds that the State has adequately addressed the possibility
that the proposals it is committing to may require additional funding. (See id. at 99.) The
Court expects the State to not only follow through on these commitments, but to make
them a top priority in order to promptly address the pressing needs of individuals with
5

In reaching this conclusion, the Court is operating under the assumption that the
State’s baseline data is current, complete, and accurate. The Court further assumes that
the State’s metrics and data collection systems will accurately reflect the progress of the
waiting lists going forward.
6

“[P]ersons with immediate need” is defined by Minnesota Statutes, Section
256B.49, subdivision 11a(b) and Section 256B.092, subdivision 12(b). (See Doc. No.
486-1 at 60.)
7

The goal concerning the elimination of the DD waiver waiting list for persons with
a defined need specifies that the waiting list is to be eliminated “within available funding
limits.” (Doc. No. 486-1 at 60.)

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disabilities throughout the state. The Court wishes to strongly emphasize that the State
must prioritize its allocation of funding to meet and achieve the Olmstead Plan’s goals.
The State may not rely on the excuse of insufficient funding to avoid following through
on the important commitments it has made in this version of the Olmstead Plan.
CONCLUSION
The Court concludes that the State’s revised Olmstead Plan substantially complies
with the requirements established by this Court and the Supreme Court’s decision in
Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead case provides an opportunity for
hope and inclusion for individuals with disabilities throughout the country. Through this
Olmstead Plan, the State commits to making that hope a reality for individuals with
disabilities in the State of Minnesota.
In approving the revised Olmstead Plan, the Court also takes this opportunity to
respond to those who have expressed fears about the plan’s purported harmful effects.
The Court has received numerous submissions from concerned community members,
parents, and advocates expressing fears that the Olmstead Plan will lead to fewer choices
and diminished respect for individuals who choose not to fully integrate into
community-based settings. 8 Many individuals with disabilities in this state value living

8

See, e.g., Amicus Brief of Ivan M. Levy (Doc. No. 506 at 6-8) (expressing fears
about the Olmstead Plan’s employment provisions and raising “concerns that the State
will not fully respect [an individual’s] decision not to integrate”). The Court has also
received and read individual letter submissions from parents concerned for the well-being
of their children with disabilities.

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and working alongside other individuals with disabilities in settings such as group homes
and sheltered workshops.
The Court emphasizes that the Olmstead decision is not about forcing integration
upon individuals who choose otherwise or who would not be appropriately served in
community settings. Indeed, the Supreme Court’s holding in Olmstead explicitly
incorporates this vision, requiring states to provide community-based treatment only
when “the affected persons do not oppose such treatment.” Olmstead, 527 U.S. at 607.
The Supreme Court emphasized that there is no “federal requirement that
community-based treatment be imposed on patients who do not desire it.” Id. at 602
(citing 28 C.F.R. § 35.130(e)(1) (1998) (“Nothing in this part shall be construed to
require an individual with a disability to accept an accommodation . . . which such
individual chooses not to accept.”)). The goal of placing individuals with disabilities in
the most integrated setting must be balanced against what is appropriate and desirable for
the individual.
The Court finds that the revised Olmstead Plan upholds this central feature of the
Olmstead decision by respecting and prioritizing an individual’s informed choice. The
concepts of individual choice and person-centered decisionmaking are central to the
Olmstead Plan’s effective implementation. (See Doc. No. 486-1 at 32-37 (identifying the
following vision statement for the Person-Centered Planning topic area of the Olmstead
Plan: “People with disabilities will decide for themselves where they will live, learn,
work, and conduct their lives.”).) The Olmstead Plan is not about and should not be
construed as forcing the closure of certain facilities or forcing integration where it is
13

neither appropriate nor desirable. (See id. at 6 (“[The Olmstead] Plan is about choice, not
about closure.”).) Rather, it is about increasing available choices so that each individual
can make meaningful decisions about how to live, work, and interact with the community.
The Court urges the State to remain vigilant to the public’s fears and concerns.
Individual choice must remain a guiding factor in the delivery of community services and
supports. The State must continue to assess its goals and priorities to ensure that they
align with the goals and priorities of individuals with disabilities. It must also allocate its
resources and funding according to the informed choices of those whom the Olmstead
Plan is meant to serve. To fully effectuate its worthy aims, the State and the OIO must
utilize the safeguards built into the revised Olmstead Plan to ensure that individual
choices are honored and respected.
The Court applauds the parties for their collaboration in developing this landmark
Olmstead Plan. Simply put, this revision of the Olmstead Plan is unlike any other version
submitted to the Court. The Court fully expects the State to act on its promises to ensure
that the Olmstead Plan will truly put the promise of Olmstead into practice across the
state.
ORDER
Based on the files, records, and proceedings herein, and the Court being otherwise
duly advised in the premises, IT IS HEREBY ORDERED that:
1.

The Court APPROVES the State’s Olmstead Plan (Doc. No. [486-1]).

2.

The Court reserves ruling on the approval of the Olmstead Plan’s

implementation plan because corresponding workplans are not yet submitted to the Court.
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(See Doc. No. 486-1 at 16.) Once these workplans are submitted, the Court will review
and approve the implementation plan based on the recommendations and input of
Magistrate Judge Becky R. Thorson.
3.

The Court reserves the right to exercise its continuing jurisdiction with

respect to the revised Olmstead Plan to ensure that compliance with the Settlement
Agreement is verified going forward. This paragraph contemplates that the Court will
continue to carry out its oversight responsibility to oversee the State’s efforts in following
through on the significant commitments it has made.
Dated: September 29, 2015

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

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