Jackson, et al v. Fort Stanton Hosp, et al

Filing 2415

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 2342 Opposed MOTION for Order Motion to Disengage Paragraph 7 of the Settlement Agreement. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WALTER STEPHEN JACKSON, et al.,
Plaintiff,
vs.

Civ. No. 87-0839 JAP/KBM

LOS LUNAS CENTER FOR PERSONS
WITH DEVELOPMENTAL DISABILITIES, et al.,
Defendants.
and
THE ARC OF NEW MEXICO,
Intervenors,
and
MARY TERRAZAS, et al,
Intervenors. pro se
MEMORANDUM OPINION AND ORDER
On December 23, 2013, Defendants Los Lunas Center for Persons with Developmental
Disabilities, et al. (Defendants) filed a MOTION TO DISENGAGE PARAGRAPH 7 OF THE
SETTLEMENT AGREEMENT (Doc. 2342) (Motion). The Motion asserts that Defendants are in
substantial compliance with actions delineated in paragraph 7 (¶ 7) of the parties’ Settlement
Agreement (Doc. No. 2299-1) (SA) and asks the Court to terminate its oversight of all activities
listed in ¶ 7.

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On January 28, 2020, Plaintiffs Walter Stephen Jackson et al. and Intervenors The Arc of
New Mexico and Mary Terrazas et al. (jointly, Plaintiffs) filed a Response opposing
disengagement of ¶ 7. See PLAINTIFFS’ AND THE ARC OF NEW MEXICO’S OPPOSITION
TO DEFENDANTS’ MOTION TO DISENGAGE PARAGRAPH 7 (Doc. 2352) (Response). On
February 18, 2020, Defendants filed their REPLY IN SUPPORT OF MOTION TO DISENGAGE
PARAGRAPH 7 OF THE SETTLEMENT AGREEMENT (Doc. 2367) (Reply).
The Motion is fully briefed. The Court finds that Defendants have shown substantial
compliance with ¶ 7 and will grant the Motion.
THE SETTLEMENT AGREEMENT
On June 21, 2019, the Court entered an order approving the parties’ final SA. The SA
“replaces all existing orders of the Court and will be the sole source of Defendants’ remaining
obligations to class members during the term of [the] Settlement Agreement.” SA (2299-1) ¶ 4.
Part III of the SA, entitled “Actions to Resolve the Litigation,” lists the actions Defendants must
take to terminate the litigation. Before termination, Defendants must show compliance with each
action item.
Section V of the SA “Compliance and Disengagement” specifies that Defendants must
implement all action items within 18 months of the date of the Court’s final approval of the SA.
Id. ¶ 17. Although the Court’s written order of final approval was not entered until June 21, 2019,
the Court gave final approval at the hearing on June 12, 2019. Eighteen months from June 12, 2019
establishes a termination date of December 12, 2020 (or midnight Friday, December 11, 2020).
The SA requires Defendants to provide specific quarterly data on the action items, with the
first relevant quarter commencing on July 15, 2019. Id. ¶ 18. The procedure for disengaging from
any action item is described in ¶ 19:

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When the Defendants believe they have substantially implemented an Action set
forth in Section III of this Settlement Agreement, they will notify the Plaintiffs and
Intervenor Arc. The notice will state the basis for the Defendants’ belief that they
have substantially implemented the Actions(s), including the facts then known
supporting their claim of compliance. At any time after thirty days from this notice,
the Defendants may file a motion for a finding of partial compliance and
disengagement of the Action(s). If the motion is contested, the parties will request
that the Court hold a hearing and enter its findings and conclusions.1 If the Court
determines that the Defendants have complied with the Action(s) of this Settlement
Agreement, it will terminate its oversight of that Action(s). In such event, the
Defendants will no longer be required to report on these Action(s) or compensate
the Plaintiffs for attorney time spent monitoring such Action(s).
But disengagement from a specific action does not end the Defendants’ obligations on that action.
Until the SA is terminated, Defendants must continue sustained compliance with all actions. Id. ¶
21.
The subject of this Motion, ¶ 7, addresses Incident Management and outlines the process
for investigating Abuse Neglect and Exploitation (ANE) of Jackson class members. These cases
are either substantiated, meaning that the investigation has uncovered evidence of ANE, or
unsubstantiated, meaning that the investigation has not found evidence of ANE. See Ex. D (Doc.
2342-4) at 1 (Policy DIV.DHI.13.09(13.260.006). Paragraph 7 states:
The Defendants will conduct timely and adequate investigations and take necessary
remedial actions, as required by current DHI policies and procedures including
Immediate Action and Safety Plan: Procedure and Guidelines;
DIV.DHI.IMB.13.260.003—IMB Conducting Investigations of Abuse, Neglect,
and Exploitation (ANE): DIV.DHI.IMB.13.260.005—IMB Investigation Quality
Assurance Review, including its Operational Procedure Detail; and DIV.DHI.IMB
13.260.006—Corrective and Preventive Action Plans.
SA (Doc. 2299-1) ¶ 7. The New Mexico Department of Health (NMDH) Incident
Management Bureau (IMB) conducts investigations of ANE. The three policies listed in ¶
7 describe the procedures for an IMB investigation.

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The parties did not request a hearing on this contested motion.

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Two of the policies involve the procedures for investigating the ANE: IMB Conducting
Investigations of Abuse, Neglect & Exploitation and IMB Corrective and Preventive Action Plans.
See Motion, Ex. B (Doc. 2342-2), Ex. D (Doc. 2342-4). The third policy, the Quality Assurance
Review (QAR), examines whether the resulting investigation complied with the requirements of
NMDH’s policies and procedures. See id., Ex. C (Doc. 2342-3). When IMB conducts a QAR, it
uses a Quality Assurance tool (QA tool) developed by the Jackson Compliance Officer, Dr. Sue
Gant (JCA) and her consultants, to assess the investigation. Id., Ex. E (Doc. No. 2342-5) ¶ 4. The
State began testing and using the QA tool in January 2016, and it was finalized in fall 2018. Id. ¶
7. Each QA report gets two scores: a quality score and a process score. Id. ¶ 12. The scores are
equally weighted for a total score. Id. ¶ 13. Under the State policy, a score of 90 percent is the
compliance threshold. Id. ¶ 14.
Defendants assert that in the first quarter of fiscal year 2020, Defendants’ IMB
investigations, as analyzed by the QA tool, received an average score of 91 percent.
LEGAL STANDARD
The Motion asks the Court to find that Defendants have substantially complied with ¶ 7 of
the SA. Substantial compliance is a contract doctrine meant “to assist the court in determining
whether conduct should, in reality, be considered the equivalent of compliance under the contract.”
Joseph A. by Wolfe v. New Mexico Dep’t. of Human Servs., 69 F.3d 1081, 1086 (10th Cir. 1995)
(citing John D. Calamari & Joseph M. Perillo, The Law of Contracts § 11-15 at 454 (3d ed. 1987)).
“Thus, the touchstone of the substantial compliance inquiry is whether Defendants frustrated the
purpose of the consent decree—i.e. its essential requirements.” Id. at 1086. In the Court’s 2015
MOO, this Court stated “[t]he substantial compliance inquiry asks whether Defendants took the
required specific steps in furtherance of the essential purposes and intent of the consent decree.”

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Jackson v. Los Lunas Center, 2015 WL 13662981 *5 (D.N.M. 2015). When a settlement
agreement identifies the steps that must be taken to meet its criteria, those criteria must be met to
show substantial compliance. See Wolfe, 69 F.3d at 1086.
ANALYSIS
The SA states that its purpose is “to identify those services, safeguards, and protections
from harm that will be provided to the plaintiff class and to ensure that a durable remedy is in place
when this litigation ends and this case is dismissed.” SA (Doc. 2299-1) ¶ 1. Toward that end, ¶ 7
identifies specific criteria that must be met to demonstrate a durable remedy and the standard for
evaluating the performance of that criteria. Supporting documentation for Defendants’ Motion
demonstrates in fiscal year (FY) 2020, quarter one, as evaluated by the QA tool, IMB
investigations received an average score of 91 percent.
Plaintiffs object to disengagement on three grounds: 1) Defendants have not demonstrated
that they have been in substantial compliance with ¶ 7 for a sufficient period; 2) the QA tool is not
an adequate measure of compliance; and 3) Defendants’ IMB investigations were flawed.
1. Length of Compliance Period
Plaintiffs argue that Defendants’ Motion must be denied because Defendants have not
shown compliance long enough. They maintain that Defendants were not in compliance in the FY
2019, fourth quarter, and they question whether Defendants were in substantial compliance in FY
2020, first quarter. Plaintiffs also argue that Defendants showed bad faith by not including more
data about FY 2019, fourth quarter cases. The language of the SA does not support Plaintiffs’
arguments.
The SA prescribes all of Defendants’ remaining obligations, replaces all existing orders,
and governs only the period following its approval. See SA (Doc. 2299-1) ¶ 4. Thus, by its terms,

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the SA applies only to Defendants’ performance after approval. During the SA negotiations and at
the SA preliminary approval hearing, the parties engaged in considerable discussion about when
the first reporting period of the SA should begin.2 The parties agreed that “[t]he specific actions
taken to meet the terms of this Settlement Agreement will be provided on a quarterly basis on the
15th of the month following the end of each quarter . . . .The first production of this data will be
due on the 15th day of the month following the end of the quarter.” SA (Doc. 2299-1) ¶ 18.
Ultimately, this language means that if the Court was to give final approval to the SA in June,
which it did, the first reporting period would begin on July 1st and would conclude 90 days later
on October 1st with the report due on October 15th. See TMH (Doc. 2298) at 39:20-21. Therefore,
the SA limits all relevant data for evaluating Defendants’ substantial compliance with ¶ 7 to data
generated from July 1, 2019 to the present day.
Although the period between April 2019 through July 1, 2019 is not relevant to the Court’s
determination of substantial compliance under the language of the SA, Defendants may, of course,
agree that additional data may be relevant. They did so here. While disengaging from ¶ 8, the
parties agreed that the Court could consider all backlogged cases when considering disengagement
from ¶ 7. Reply (Doc. 2367) at 11. However, Plaintiffs have presented no evidence that Defendants
agreed that pre-SA data was more relevant or could supersede the data provided in the SA’s first

2
As explained at the preliminary hearing by Plaintiffs’ counsel, Mr. Schwartz, and Kathyleen Kunkel, Cabinet
Secretary of NMDH:
Mr. Schwartz: The word ‘approval’ as we’ve discussed, although it probably could be clarified, means the
final approval. So, if the court were, for instance, to approve the agreement on June 15th, then the quarter
that begins on June 15th would be the first reporting quarter. So it would be three months from June 15th,
approximately July, August, September 15th, and then the report would be due September 30th. So the time
period of quarterly reporting runs from final approval.
...
Mrs. Kunkel: So that was the concept, just to start fresh on probably July 1, and then two weeks before we
meet, we have a commitment to provide them [Plaintiffs] with documents which has been a problem for us
to agree on dates, and it was more for us to agree on when reports would be provided and when we would
meet.
See Transcript of Motion Hearing, April 18, 2019 (TMH) (Doc. 2298) at 34:10-18, 38:6-11.

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reporting period. Nor is there evidence that the parties agreed that the Defendants’ failure to
include data about all backlogged cases would demonstrate bad faith.
Notably, the SA does not set a specific period for Defendants to show substantial
compliance before requesting disengagement. When addressing compliance and disengagement,
the SA states only that Defendants may give notice of substantial compliance and request
disengagement “[w]hen the Defendants believe they have substantially implemented an Action set
forth in Section III of this Settlement Agreement. . . .” With the notice Defendants must include
“the basis for the Defendants’ belief that they have substantially implemented the Actions(s),
including the facts then known supporting their claim of compliance.” SA (Doc. 2299-1) ¶ 19.
Moreover, in the hearing for preliminary approval of the SA, Plaintiffs acknowledged that
there was not a “set period” for compliance. As Plaintiffs’ counsel Mr. Schwartz stated:
But we have also agreed that there is not a waiting period after compliance that the
defendants come forward with their evidence, let’s say, on January 1st, or whatever
date it is – and we note that, the court notes, they can come forward with the
evidence earlier than the 18 months because there is, as there currently is, a process
for incremental disengagement.
TMH (Doc. 2298) at 32:4-10. For these reasons, Plaintiffs’ argument that Defendants must show
compliance for a period longer than one fiscal quarter fails. The SA states only that when
Defendants give notice of substantial compliance, they must “believe” they have substantially
complied and “provide evidence” in support. Defendants have done so.
2. The QA Tool is the Parties’ Agreed Method of Determining Substantial Compliance
Defendants’ assertion of substantial compliance as to ¶ 7 relies on their QA average score
of 91 percent in FY 2020, first quarter. Plaintiffs object to this score, arguing that an average QA
tool score is an inaccurate measure of IMB investigations. According to Plaintiffs, the QA tool is
inadequate in two ways: first, the use of an average QA score masks deficiencies in IMB

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investigations; and second, the QA tool is not comprehensive enough because it does not measure
substantial compliance as to corrective actions plans. Defendants counter that Plaintiffs’ arguments
are an attempt to alter the substantial compliance standard in ¶ 7 by changing the criteria. The
Court agrees.
Paragraph 7 requires compliance with the QAR. That policy incorporates the QA tool to
“ensure the accuracy, thoroughness, quality and completeness of IMB investigations and identify
and remedy any areas found deficient.” Motion, Ex. C (Doc. 2342-3) I. Over a three-year period,
the parties developed and refined the QA tool. Together, the parties set the threshold of substantial
compliance at a 90 percent average score. Although the QA tool may not include everything the
Plaintiffs now want, they cannot now change the criteria. An average score of 90 percent or above
on IMB investigations demonstrates substantial compliance under the terms of ¶ 7.
3. The Accuracy of the QA Scores
Plaintiffs’ final argument is that the QA scores are inaccurate because Defendants’
documentation demonstrates a “pattern of noncompliance with several DHI policies and
procedures.” Response (Doc. 2352) at. 2. Plaintiffs support this argument with attached affidavits
by Eva Kutas and Jaqueline Mader (jointly Affidavits). The Kutas Affidavit is accompanied by
her summation and findings with respect to five substantiated cases and two unsubstantiated cases.
These cases include both backlogged cases from FY 2019 and cases from FY 2020, quarter one.
The Mader affidavit is accompanied with an IMB closure letter on one of the unsubstantiated cases.
Defendants object to the use of these experts to evaluate their compliance, largely because
of Ms. Kutas’ prior role in this case. Before the Court’s preliminary approval of the SA, Ms. Kutas
worked as a designee of the JCA. After the Court gave preliminary approval to the SA, Ms. Kutas’
work as a JCA designee ended. SA (Doc. 2299-1) ¶ 6 (stating “the Jackson Compliance

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Administrator will cease all monitoring or consultation activities and will no longer have any role
in the oversight of Defendants’ operations upon preliminary approval of the Settlement
Agreement.”). Defendants argue that the use of a former JCA designee violates the “spirit” of the
SA because the SA is meant, in part, to avoid the costs of litigation. Reply (Doc. 2367) at 5. They
ask the Court to reject the Affidavits. But Defendants have failed to establish that the Affidavits
are not relevant.
While the SA terminated Ms. Kutas’ role as a monitor, it did not bar Ms. Kutas from
reviewing compliance issues. In fact, nothing in the SA prevents Plaintiffs from using an expert to
substantiate their opposition to disengagement. Notably, Defendants do not argue that Ms. Kutas
and Ms. Mader are unqualified to be experts or that their testimony is unreliable. See Fed. R. Evid.
702 and Fed. R. Evid. 703 (outlining the necessary qualifications of an expert and the relevant
bases for expert opinions). Defendants’ arguments concerning the substance of the Affidavits goes
to the weight of the evidence, not their evidentiary value.
Relying exclusively on the Affidavits, Plaintiffs argue that there are three areas of
noncompliance: 1) The QA scores are inaccurate because they were assessed by a DHI supervisor;
2) IMB did not implement the correct procedures in its investigations; and 3) Defendants did not
substantiate that corrective action plans were implemented and successful.
Plaintiffs first contend that it is inappropriate to rely wholly on a NMDH supervisor’s
evaluation of a sample of the supervisor’s own employees to demonstrate “compliance with four
separate policies, and up to ten related procedures, comprising close to sixty pages of investigation
requirements and provisions.” Response (Doc. 2352 ) at 8. As proof, Plaintiffs indicate that the
NMDH supervisor’s conclusions that the investigations met the policy standards contradict the
findings of Plaintiffs’ expert, Ms. Kutas. This argument is yet another iteration of Plaintiffs’

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rejection of the efficacy of the QA tool. The SA explicitly incorporates the QA tool, which provides
both the standards and the personnel responsible for doing the evaluation. When Plaintiffs agreed
to the SA, they agreed to those standards, and they are now bound by them.
Next, Plaintiffs allege that the investigations were inadequate. According to Plaintiffs, the
IMB investigators did not take the actions Plaintiffs’ assert were most appropriate. For this
argument Plaintiff relies both on backlogged cases from FY 2019 and on the more current cases
from FY 2020, first quarter. The backlogged cases are immaterial on this issue as Defendants did
not produce them to support their claim of substantial compliance, and the cases predate the cases
Defendants have produced.3 The only relevant cases in this inquiry are the ones from FY 2020,
first quarter.
In arguing the inadequacy of the investigations, Plaintiffs reject both the actions taken by
the investigators and their conclusions. But Plaintiffs’ arguments ignore the discretionary element
of an IMB investigation. Each of the policies referenced in ¶ 7 direct that IMB investigators take
some mandatory actions, but often leave the implementation of those actions to the discretion of
the investigator. For example, when initiating an ANE investigation, the investigator is required to review
an “Immediate Action and Safety Plan (IASP) provided by the Community-Based Service Provider
(agency) and ensure the plan is adequate to protect the alleged victim and all other individuals potentially
impacted by the incident/allegation, in accordance with the IASP policy.” Motion, Ex. B (2342-2) III(B)(1).

This provision makes an IASP mandatory, but the adequacy of the IASP is left, in part, to the
discretion of the investigator.
Plaintiffs contend that “[a]ll five of the IASPs reviewed were non-compliant with one or
more expectations for assuring safety of the individual and others affected when ANE was reported
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Defendants acknowledge that the backlogged cases received scores below 90 percent. There is no requirement in
the SA that Defendants make backlogged cases substantially compliant. Even if there were, Defendants argue that
they cannot correct errors in past investigations because of the timelines in the policies.

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. . . .” But Plaintiffs’ arguments focus their analysis on the adequacy of the investigator’s actions.
Plaintiffs do not argue that no action was taken to assure the class member’s safety; they just
disagree with the actions that were. Nothing in the policy mandates that Defendants take specific
actions to ensure an “adequate plan.” Moreover, there is no evidence that any deficiencies in the
IASP were not accounted for in the investigation’s final QA score.
Plaintiffs also question the findings that two of the cases were unsubstantiated. Plaintiffs
allege that the two cases involved severe injuries, and the documentation did not thoroughly
establish that these cases were unsubstantiated. Again, Plaintiffs are substituting their judgment
for the investigators’, and in doing so, are ignoring the QA scores, a tool they helped develop and
implement.
Finally, Plaintiffs argue that Defendants have failed to furnish evidence that Defendants
complied with the requirements of the Corrective Action Plan policy. This policy requires
community-based providers to submit a corrective and preventative action plan (CPAP) for ANE
substantiated cases. The policy provides guidance on “what constitutes a timely, effective and
appropriate Corrective and Preventative Action Plan, and what to do when a Corrective and
Preventative Action Plan submitted by a provider is inadequate.” In the two current cases reviewed
with a CPAP, Plaintiffs object that certain corrective and preventative actions were not listed in
the report and so had not been verified. Notably, Plaintiffs also found documentation that the
corrective actions listed in the CPAP report had been completed.4 As Defendants observe, the
policy provides that under limited circumstances and with the approval of a supervisor,

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See Response, Affidavit of Eva Kutas (Doc. 2352-1). In her findings about the CPAP of case number 2K20-0102A, Ms. Kutas states that the CPAP lists two corrective actions, that were not verified in the report. Then she notes
that additional documentation indicated that both items were done.

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investigators may close an investigation without verification of full implementation. See Motion,
Ex. D (Doc. 2342-4) IIIB.
The Court finds that Defendants’ scores on the QA tool demonstrate that they have
substantially complied with the requirements of ¶ 7.
IT IS ORDERED THAT: Defendants’ MOTION TO DISENGAGE PARAGRAPH 7 OF
THE SETTLEMENT AGREEMENT (Doc. 2342) is GRANTED.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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