IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF HAWAI’I 


UNITED STATES OF AMERICA,

)


)


Plaintiff,

)


)


v.

)

)

THE STATE OF HAWAI’I,

)

LINDA LINGLE, GOVERNOR OF HAWAI’I; )

LILLIAN B. KOLLER, DIRECTOR OF

)

THE HAWAI’I DEPARTMENT OF HUMAN )

SERVICES; SHARON AGNEW, DIRECTOR )

OF THE OFFICE OF YOUTH SERVICES; )

PATRICIA HAMAMOTO,

)

SUPERINTENDENT OF THE HAWAI’I

)

DEPARTMENT OF EDUCATION; AND

)

KALEVE TUFONO-IOSEFA,

)

ADMINISTRATOR OF THE HAWAI’I

)

YOUTH CORRECTIONAL FACILITY.;

)

)


)


Defendants.

)


)

___________________________________)

COMPLAINT

CIVIL ACTION NO: [CIVIL RIGHTS ACTION] COMPLAINT

1. This action is brought by the Attorney General, on behalf of the United States, pursuant to the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin the State of Hawai’i from depriving youth confined in the Hawai’i Youth Correctional Facility (“HYCF”) of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.

- 2 ­ JURISDICTION, STANDING, AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141. 4. Venue in the United States District Court for the District of Hawai’i is proper pursuant to 28 U.S.C. § 1391(b). All claims set forth in the Complaint arose in this District.
DEFENDANTS 5. Defendant STATE OF Hawai’i (“STATE”) is responsible for the administration of juvenile justice in the State. The STATE operates, or contracts for the operation of, the only secure juvenile justice facility in the State. This action concerns the administration of HYCF (“the facility”). The facility houses youth in STATE custody who are confined for periods of time by the STATE courts. 6. Defendant Hawai’i DEPARTMENT OF HUMAN SERVICES establishes the general policy to be followed by its juvenile institutions and contractors; provides leadership in developing programs to rehabilitate youth committed to STATE custody; and is responsible for the promulgation of all rules and regulations necessary and appropriate to the administration of the Hawai’i OFFICE OF YOUTH SERVICES, including the operation of HYCF.

- 3 ­ 7. Defendant Hawai’i OFFICE OF YOUTH SERVICES is responsible for providing for the supervision, detention, education, medical care, mental health care, and rehabilitation of youth committed to the STATE’s custody at HYCF. 8. Defendant LINDA LINGLE is the Governor of Hawai’i, and, in this capacity, heads the executive branch of Hawai’i’s government. The Governor of Hawai’i, as chief of the executive branch, has the duty to ensure that the departments that compose the executive branch of Hawai’i guarantee the constitutional and federal statutory rights of the youth confined in juvenile justice facilities owned and operated by, or providing services on behalf of, Hawai’i. 9. Defendant LILLIAN B. KOHLER is the Director of the Department of Human Services, and, in this capacity, exercises administrative control of, and has responsibility for, the operation of HYCF. 10. Defendant SHARON AGNEW is the Director of the Office of Youth Services, and, in this capacity, exercises administrative control of, and has responsibility for, the operation of HYCF. 11. Defendant PATRICIA HAMAMOTO is the Superintendent of the Hawai’i Department of Education and, in this capacity, exercises administrative control of, and has responsibility for, the education of youth at HYCF.

- 4 
­ 12. Defendant KALEVE TUFONO-IOSEFA is the Administrator of HYCF and is responsible for the administration and day-to-day operations of the facility. 13. The individual Defendants named in ¶¶ 8 - 12 above are sued in their official capacities. 14. Defendants are legally responsible, in whole or in part, for the operation of and conditions at the facility; for ensuring that all youth in the facility receive appropriate treatment, training, and education commensurate with their needs and abilities; and for ensuring that programs in the facility are consistent with the Office of Youth Services’ mission to provide opportunities for the treatment and rehabilitation of youth. 15. All relevant acts or omissions described below have been undertaken by the STATE, a political subdivision of the STATE, or an official, employee, agent or person acting on behalf thereof.
FACTUAL ALLEGATIONS 16. Defendants are governmental authorities or agents thereof with responsibility for the administration of juvenile justice or the incarceration of youth within the meaning of 42 U.S.C. § 14141. 17. Defendants have engaged, and continue to engage, in a pattern or practice of failing to adequately protect youth from self-harm.

- 5 
­ 18. Defendants have engaged, and continue to engage, in a pattern or practice of failing to adequately protect youth from harm and from undue risk of harm resulting from staff abuse, youth assaults, and abusive institutional practices. 19. Defendants have engaged, and continue to engage, in a pattern or practice of subjecting youth at HYCF to unreasonable isolation and failing to provide adequate due process for youth. 20. Defendants have engaged, and continue to engage, in a pattern or practice of denying youth access to an adequate grievance system. 21. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at HYCF have access to adequate medical and mental health care. 22. Defendants receive federal financial assistance and, as such, are subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder. 23. Youth residing at HYCF include youth with specific learning disabilities who fall within the meaning of “child with a disability” as defined in the Individuals with Disabilities Education Act, 20 U.S.C. § 1401(3)(A), and “individual with a disability,” as defined in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(20).

- 6 
­ 24. Defendants have engaged, and continue to engage, in a pattern or practice of failing to provide qualified youth committed to HYCF with access to adequate special education and related services pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, and Section 504 of the Rehabilitation Act of 1973 (“Section 504"), 29 U.S.C. § 794.
VIOLATIONS ALLEGED 25. Through the acts, practices, and omissions alleged in ¶¶ 17 - 24, Defendants have engaged, and continue to engage, in a pattern or practice of depriving youth confined at HYCF of rights, privileges, or immunities secured or protected by the Constitution of the United States, including the Eighth and Fourteenth Amendments, and in violation of 42 U.S.C. § 14141(a). 26. Through the acts, practices, and omissions alleged in ¶¶ 23 - 24, Defendants have engaged, and continue to engage, in a pattern or practice of failing to comply with the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401 et seq., and the regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and violating 42 U.S.C. § 14141(a). 27. Through the acts, practices, and omissions alleged in ¶¶ 22 - 24, Defendants have engaged, and continue to engage, in a pattern or practice of failing to comply with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and the

- 7 
­ regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and violating 42 U.S.C. § 14141(a).
28. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in ¶¶ 17 - 24 that deprive youth confined at HYCF of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law.
PRAYER FOR RELIEF 29. The Attorney General is authorized, pursuant to 42 U.S.C. § 14141, to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, their agents, employees, subordinates, successors in office, contractors, and all those acting in concert or participation with them from continuing the acts, practices, and omissions set forth in ¶¶ 17 - 24, above, and to require Defendants to take such action as will provide legal and constitutional conditions of care to youth confined at HYCF and any other secure facility to which defendants transfer youth confined at HYCF during the pendency of this action. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.

- 8 ­ Respectfully submitted,

/s/ Edward H. Kubo, Jr.
EDWARD H. KUBO, JR. United States Attorney District of Hawai’i 300 Ala Moana Boulevard Honolulu, HI 96850 (808) 541-2850 (808) 541-2958 (FAX) HI. Bar Number 2499
/s/ Harry Yee
______________________ HARRY YEE Assistant United States
Attorney Chief, Civil Division 300 Ala Moana Boulevard Honolulu, HI 96850 (808) 541-2850 (808) 541-2958 (FAX) HI. Bar Number 3790
Date: February 7, 2006

/s/ Wan J. Kim
WAN J. KIM Assistant Attorney General Civil Rights Division
/s/ Bradley J. Schlozman
BRADLEY J. SCHLOZMAN Principal Deputy Assistant Attorney General Civil Rights Division
_/s_/__Sh_a_n_et_t_a_Y_.__Cu_t_l_ar_____________ SHANETTA Y. CUTLAR Chief Special Litigation Section
/s/ Judy C. Preston
JUDY C. PRESTON Deputy Chief Special Litigation Section
/s/ Lashanda Branch Chirunga /s/ Sarah H. Gerhart
SARAH H. GERHART LASHANDA BRANCH CHIRUNGA Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 353-1584 (202) 514-0212 (FAX)

 
 Case 1:06-cv-00073-JMS-LK Document 11 Filed 12/11/08 Page 1 of 4 PageID #: 70

GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
SHANETTA Y. CUTLAR Chief Special Litigation Section
JUDY C. PRESTON Deputy Chief Special Litigation Section
LAURA L. COON Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-1089 (202) .514-0212 (FAX) Laura.Coon@usdoj .gov
EDWARD H. KUBO,· JR. #2499 United States Attorney District of Hawai'i
HARRY YEE #3790 Assistant United States Attorney Chief, Civil Division 300 Ala Moana Boulevard Honolulu, HI 96850 (808) 541-2850 (808) 541-2958 (FAX)
Harry~Yee@usdoj.gov
Attorneys for Plaintiff

CIVIL NO. 06-00073JMS-LEK [Civil Rights
Action]

Case 1:06-cv-00073-JMS-LK Document 11 Filed 12/11/08 Page 2 of 4 PageID #: 71

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI'I

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE STATE OF HAWAII I I

)

LINDA LINGLE, GOVERNOR OF HAWAI'I; )

LILLIAN B. KOLLER, DIRECTOR OF

)

THE HAWAI'I DEPARTMENT OF HUMAN

)

SERVICES; MARTHA TORNEY, DIRECTOR )

OF THE OFFICE OF YOUTH SERVICES; )

PATRICIA HAMAMOTO,

)

SUPERINTENDENT OF THE HAWAI'I

)

DEPARTMENT OF EDUCATION; AND

)

JAMES CARPENTER,

)

ADMINISTRATOR OF THE HAWAI'I

)

YOUTH CORRECTIONAL FACILITY;

)

)

)

Defendants.

)

__________________________________

)
)

CIVIL ACTION NO: CV 06-00073-JMS-LEK

ONE YEAR EXTENSION OF THE MEMORANDUM OF AGREEMENT WHEREAS the United States and the State of Hawai'i, the Governor of Hawai'i, the Director of the Hawai'i Department of Human Services, the Director of the Hawai'i Office of Youth Services, and the Superintendent of the Hawai'i Department of Education (the "State Defendants") entered a Memorandum of Agreement that was filed with the Complaint and Joint Motion to Dismiss pursuant to Fed. R. Civ. P. 41(a) (2), in the above captioned matter ("Memorandum of Agreement"), a copy of which is attached to and incorporated into this Extension Agreement; WHEREAS the above captioned matter was conditionally dismissed pursuant to Fed. R. Civ. P. 41(a) (2), on "February 9, 2006, by order of the Honorable Samuel P. King;

Case 1:06-cv-00073-JMS-LK Document 11 Filed 12/11/08 Page 3 of 4 PageID #: 72
WHEREAS pursuant to Paragraph 75 of the Memorandum of Agreement in the above captioned matter, the Memorandum of Agreement will terminate on February 9, 2009; and
WHEREAS the State Defendants have made appreciable progress in achieving compliance with the terms of the Memorandum of Agreement, yet need additional time to achieve sustained subst.antial compliance with the terms of the Memorandum of Agreement;
NOW THEREFORE, the Parties agree:
1. The Memorandum of Agreement shall be extended for one year, effective February 9, 2009 and shall terminate on February 9, 2010, or as otherwise provided for and in accordance wi~h the other provisions of the Memorandum of Agreement. The remaining provisions of the Memorandum of Agreement shall remain in full force and effect as they exist at the time of execution of this Extension Agreement.
2. The Extension Agreement may be executed in cOunterparts.
3. The State Defendants and the United States agree that this Extension Agreement is a mutually binding agreement.
AGREED TO BY THE UNDERSIGNED:
FOR THE UNITED STATES:
GRACE CHUNG BECKER ssistant Attorney General ts Division
by:
Special Litigation Section
JUDY C. PRESTON Deputy Chief
LAURA L. COON Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 514-1089 (2 02 ) 514 - 02 12 (fax)

Case 1:06-cv-00073-JMS-LK Document 11 Filed 12/11/08 Page 4 of 4 PageID #: 73
FOR THE STATE:
MARK BENNETT Attorney General of Hawai'i
by, =~ltl;
Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Telephone: (808) 586-1500 Fax: (808) 586-1239

 
 August 4, 2005
The Honorable Linda Lingle Governor, State of Hawaii Executive Chambers State Capitol Honolulu, HI 96813
Re: Investigation of the Hawaii Youth Correctional Facility, Kailua, Hawaii
Dear Governor Lingle: I am writing to report the findings of the Civil Rights
Division’s investigation of the conditions at the Hawaii Youth Correctional Facility (“HYCF”) in Kailua, Hawaii. On August 16, 2004, we notified you of our intent to conduct an investigation of HYCF pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). CRIPA and Section 14141 give the Department of Justice authority to seek remedies for any pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
From October 5, 2004 to October 8, 2004, we conducted an on-site inspection of HYCF aided by our expert consultant in the field of juvenile justice. We interviewed administrators, the acting correctional supervisor, youth corrections supervisors, youth correctional officers (“YCOs”), medical staff, mental health staff, educators, social workers and youth at HYCF. On October 26, 2004, we conducted individual interviews with each of the girls from HYCF temporarily placed at the Salt Lake Valley Detention Center (“SLVDC”) in West Salt Lake City, Utah, regarding the conditions at HYCF. Before, during, and after our tour, we reviewed an extensive number of documents including, but not limited to, incident reports, juvenile correctional records,

youth grievances, discipline records, medical files, mental health progress notes, shift logs, staff training materials, and school records. Consistent with our commitment to provide technical assistance and conduct a transparent investigation, we provided two extensive de-briefings following our tour: one with Sharon Agnew, the Executive Director of the Office of Youth Services (“OYS”), and Kaleve Tofono-Iosefa, the Administrator of HYCF; and another with Attorney General Mark Bennett, then-First Deputy Attorney General Richard T. Bissen, Jr., and Ms. Agnew. During the de-briefings our consultant expressed his initial impressions and concerns, and attorneys for the Civil Rights Division also presented their discoveries regarding dangerous suicide risks at the facility. Shanetta Y. Cutlar, Chief of the Special Litigation Section, sent an October 15, 2004 letter to Mr. Bissen documenting suicide hazards at HYCF and requesting that the State of Hawaii (“State”) take immediate remedial action.1
We commend the Administrator and her staff at HYCF, as well as Ms. Agnew and administrators at OYS, for their helpful and professional conduct throughout the course of our investigation. The State granted immediate and unfettered access to HYCF, permitted us to interview the staff and residents, and provided all documents we requested regarding the facility and the youth confined there. We also appreciate the State’s receptiveness to our consultant’s on-site recommendations. Indeed, we note that Hawaii has stated that it has implemented a number of the recommendations.
Consistent with the statutory requirements of CRIPA, we now write to inform you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified. As more fully described below, we conclude that certain deficiencies violate the constitutional and federal statutory rights of the youth confined at HYCF. In particular, we find that youth confined at HYCF suffer harm or risk of harm from constitutional deficiencies in the facility’s confinement practices, suicide prevention procedures, and provision of access to mental health

1

Mr. Bissen responded to Ms. Cutlar’s letter on November 23,

2004. In his letter, Mr. Bissen identified remedial measures the

State had taken to address our concerns.

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and medical care services. We also find that the State fails to provide access to required education services pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, and Section 504 of the Rehabilitation Act of 1974 (“Section 504”), 29 U.S.C. § 794.
I. BACKGROUND HYCF is the state’s sole juvenile justice facility. HYCF, a 71-bed facility, is comprised of two separate facilities with three housing units: two boys’ housing units and a girls’ housing unit. With certain exceptions, HYCF houses boys confined for long terms at the main secure custody facility (“SCF”) and places boys adjudicated for short terms at the Ho’okipa Makai (“Ho’okipa”), a cottage unit located approximately one-quarter mile from the main facility.2 The SCF is comprised of a central courtyard surrounded by three housing modules, with ten cells and a common area in each module, a school, a gymnasium, kitchen facilities, offices for administrative and medical staff, and two isolation cells. Ho’okipa has two dormitories, with bunk-bed space for 12 boys in one room and six boys in the other, and three single isolation units. The Observation and Assessment Cottage (“O&A”), a freestanding living unit located a few hundred feet from SCF, has ten cells that provide space for up to 20 female youth. O&A also has an attached school and a fenced-in area for outdoor recreation. The girls’ facility was vacant at the time of our visit, as the State had transferred the girls to SLVDC for temporary placement.3
III. FINDINGS It is no exaggeration to describe HYCF as existing in a state of chaos. The most fundamental problem that plagues HYCF is the absence of policies or procedures to govern the facility.4

2

HYCF housed aggressive youth sentenced to short terms at SCF

at the time of our visit.

3

The girls returned to HYCF on or about November 18, 2004.

4

Prior to our visit, the State provided us with a set of

policies and procedures that purportedly governed operations at

(continued...)


-3­


The absence of rules or regulations has permitted a culture to develop where abuse of youth often goes unreported and uninvestigated.
Security staff have stepped into the vacuum of order and taken control of every aspect of the operation of the facility. Security staff, who have received no training in over five years and have no rules to guide their decisions, routinely use excessive force against youth, confine youth to their cells for days on end, discipline youth without justification or oversight, deny youth access to medical and mental health services, and prevent youth from receiving education. It appears that this situation is not of recent advent. Indeed, it is our impression that the situation has existed for years.
In the past few years the State has taken a number of measures to remedy the absence of accountability at HYCF. At the ground level, administrators have attempted to bring order to HYCF by issuing rules and policies in the form of memoranda. Their efforts have been countered at every juncture by security staff who routinely ignore administrative directives and suffer few, if any, repercussions. Indeed, as detailed below, YCOs continue to run the facility as they choose, regardless of the negative impact on the health and welfare of the youth confined there.
At a higher level, the State has expended considerable resources to reform HYCF. The State has taken the initiative to seek technical assistance from consultants and organizations. The work of these individuals and groups has been facilitated by
(...continued)
 HYCF. The Department of Public Safety, the department that governed the operations of HYCF until 1991, issued the policies in 1984. The Hawaiian legislature repealed them in 2002. Regardless of the legislative action, the policies were outdated and intended for an adult institution. Further, in the course of our interviews, we found that staff and administrators were either unaware of the existence of any policies or procedures or were cognizant of their existence yet ignorant of their content. To its credit, the State recently drafted new policies based on model guidelines issued by the American Correctional Association, but has yet to implement them at the facility. The State has stated that it has provided training to its staff on a few of the new policies, but not all.
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the State’s remarkable candor in recognizing its deficiencies. We applaud the State for accepting the advice and recommendations of these professionals and pursuing long term, holistic solutions rather than stop-gap measures. Nevertheless, the State’s reform movement at HYCF is in its nascent stage and will take some time to produce results. In the interim, youth continue to suffer unduly harsh and punitive conditions on a daily basis.

A. PROTECTION FROM HARM As a general matter, the State must provide confined juveniles with reasonably safe conditions of confinement. See Youngberg v. Romeo, 457 U.S. 307, 315-24 (1982); Bell v. Wolfish, 441 U.S. 520, 535-36 & n.16 (1979); Gary H. v. Hegstrom, 831 F.2d 1430, 1432-33 (9th Cir. 1987). As part of this constitutional mandate, confined juveniles must be protected from physical assault and the use of excessive force by staff. Youngberg, 457 U.S. at 315-16. See also Redman v. County of San Diego, 942 F.2d 1435, 1441 n.7 (9th Cir. 1991) (en banc) (finding that the State has an affirmative duty to protect juveniles confined in an adult detention center from harm at the hands of other detainees). Neither the Supreme Court nor the Ninth Circuit has ever determined definitively whether the Eighth Amendment or the Fourteenth Amendment provides the governing constitutional standard for conditions at facilities, like HYCF, where juveniles are incarcerated for both penal and rehabilitative purposes. See Stevens v. Harper, 213 F.R.D. 358, 373-374 (E.D. Cal. 2002); see also Haw. Rev. Stat. § 352-2.1 (noting that purposes of youth correctional facilities in Hawaii are to incarcerate, punish, and provide institutional care to juveniles so as to facilitate their eventual reintegration back into the community).5 Because the conditions at HYCF are so egregious as to violate even the more stringent Eighth Amendment standard, it is not necessary to reach that issue for purposes of this letter. Our investigation revealed major constitutional deficiencies in the harm protection measures in place at the facility. In particular, the State fails to protect youth from: (1) self harm; (2) staff violence; (3) youth–on–youth violence; (4)

5

Where the purpose of the juvenile facility is exclusively

rehabilitation, the Ninth Circuit has held that the Fourteenth

Amendment’s more relaxed standard controls. See Gary H. v.

Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987).

-5­


excessive use of disciplinary isolation; (5) lack of supervision; and (6) an inadequate grievance system.
1. Self-Harm There appear to serious problems in the way the State attempts to protect youth at HYCF from self-harm. In particular, we observed that: (a) staff fail to assess suicidal youth adequately; (b) staff fail to supervise adequately youth on suicide precautions and in disciplinary isolation; (c) staff lack training to respond appropriately to suicide attempts; and (d) the State houses youth at risk of self-harm in unsafe circumstances. The overarching problem is a lack of policies and procedures to instruct staff. Without policies governing suicide prevention, supervision, and reporting -- and training in such policies -- the risk that a youth at HYCF will commit self-harm is quite high. The risk of self-harm is not hypothetical. During our visit to HYCF we learned that two female youth made serious attempts to commit suicide on September 10, 2004, one month after we notified you of our investigation: • A youth used her bra to hang herself from the bunkbed in her cell. Another youth found her hanging and yelled for the YCO on duty. The YCO arrived at the cell, became frightened, and dropped his keys. A second youth then grabbed the keys, unlocked the door, and lifted up the unconscious young woman. Another resident removed the bra strap from the young woman’s neck and laid her on the floor. • At the same time, in a different cell in the same unit, a second youth attempted suicide by hanging. She tied one end of a bed sheet around her neck and the other end to a pole. A YCO and another youth responded and removed the sheet from the suicidal youth’s neck. The youth had attempted suicide earlier that day by cutting herself 21 times with a bra wire, and had further attempted suicide two days earlier by cutting her wrist with a razor. Equally disturbing, we found that youth use staples, toothpicks, plastic cups, and pieces of broken tiles to cut into their flesh. During our interviews we observed carvings on their faces, arms, and legs. This behavior apparently occurs with the full awareness of the staff charged with keeping youth safe.
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a. Insufficient Assessment of Suicidal Youth It is both customary practice and legally essential for incarcerated juveniles who are identified as potentially suicidal to be been placed on suicide precaution and monitored by mental health professionals. Unfortunately, a review of corrections and medical files at HYCF revealed that few measures are taken to ensure that staff properly learn of, or supervise, youth who self-identify as suicidal at intake. The failure to transmit this information creates an unnecessary risk that the individuals may harm themselves and, at the same time, prevents correctional officials from undertaking precautionary protective measures. We set forth below several examples where staff failed to alert others that youth have a history and/or tendency to engage in self-harming behavior: • When he arrived at HYCF on June 8, 2004, a youth stated to a social worker that he had attempted to commit suicide ten days prior while in detention. However, a review of the youth’s intake evaluation and of his medical and correctional files revealed that the information was not communicated to either mental health professionals or security staff. • In a youth’s file, a suicide screening form dated September 20, 2004, and an intake evaluation dated September 24, 2004, both indicated that the youth was contemplating suicide. However, there is no evidence of suicide precautions in his medical record. • A suicide screening form in one youth’s file dated September 22, 2004, included notations that the youth previously attempted suicide by hanging, that there was a family history of suicide, and that the youth had received psychiatric interventions. Despite this clear evidence of a past history of self harm, the youth’s intake evaluation, which was dated five days later, did not contain a history of suicide attempts or past psychiatric problems. No special precautions were either recommended or taken.
b. Inadequate Supervision of Youth on Suicide Precautions
In addition to appropriate monitoring by mental health professionals, potentially suicidal youth require appropriate
-7­


supervision by direct care staff, who are the only staff in the facilities on duty 24 hours a day. We found that supervision of suicidal youth by direct care staff throughout the facilities was inadequate.
It is essential that staff document their observations and denote the actual times of their checks on suicidal youth. Policies and procedures should dictate that these functions occur with regularity. Supervisory personnel, meanwhile, should be verifying that line staff are performing assigned duties. Yet neither of these things seem to be occurring at HYCF.
At the time of our tour, HYCF had no policies or procedures governing suicide observation.6 We found that security staff unilaterally remove youth from suicide observation status without the approval of mental health professionals. For example, following a September 8, 2004 suicide attempt in which a youth slit her wrist with a razor, mental health professionals ordered that security staff place the youth in a secure cell with “one-on-one line of sight supervision” for at least four days. Instead, the youth was only monitored by camera during the night. The next morning, a YCO permitted the youth to spend extensive time — completely unobserved — performing chores in a cleaning closet containing hazardous chemicals. When a nurse questioned the YCO regarding this lapse in judgment, the YCO reportedly responded that she did not know the youth was on suicide watch and dismissed the nurse’s concerns with the comment: “Okay. Go away.” Amazingly, the youth continued to perform housekeeping tasks outside the sight of the YCO.7 Shortly thereafter, the youth approached the nurse and produced several paper clips she found while cleaning, confessing that she had contemplated using the paper clips to harm herself. Two days later, the youth attempted suicide again by cutting her wrist and hanging.

6

The State issued a draft policy governing suicide prevention

entitled “Suicide Prevention and Precaution.” The draft policy

addresses some, but not all, of our concerns. We have not

formally commented on the policy because it is still under review

by the State. Nonetheless, the drafting of a policy is an

encouraging first step towards protecting youth from self–harm.

7

The YCO assigned to observe the youth recorded in the shift

log that the youth was “cleaning while being counseled.” There

was neither evidence nor reason to believe that the YCO provided

any counseling.

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We also found that security staff routinely fail to conduct observations of youth on suicide watch. For example, a May 15, 2004 report on one suicidal youth contains a notation that the corrections supervisor had instructed the YCOs on duty to monitor the youth every 15 minutes and record the time and observations of each check. Our review of the log, however, indicated that the YCOs performed the checks (or at least recorded their observations) only sporadically over the following 24-hour period. Occasionally, there were observations memorialized on 15-minute intervals, while at other times, checks appear to have occurred only on the half-hour or hour.
c. Lack of Preparedness for Suicide Attempts and Other Self-Harm
Staff training at HYCF in suicide prevention measures is likewise highly inadequate. There is universal agreement among experts that staff who interact with potentially suicidal youth must be trained to detect, assess, and if necessary, intervene to prevent a suicide. HYCF does not meet that standard.
i. Lack of Training The State has failed to provide YCOs with training regarding suicide attempts nor has it instructed YCOs on strategies for de-escalating youth who are engaged in self-harming behaviors. As a result, security staff monitoring youth on suicide precautions have no guidance on how to respond to threats (or reported ruminations) of self-harm, how to deal with actual suicide attempts, or what measures to take to ensure that a youth who engages in self-harm receives prompt treatment from mental health professionals. A good example of the danger that inadequate staff training presents is an incident that occurred on December 23, 2003. Around midnight that evening, security staff found a youth hanging from a bed sheet tied to the vent in his cell. Yet the staff on duty failed to notify the medical or mental health units immediately. Instead, they waited two-and-a-half hours before transporting the youth to the emergency room. To make matters worse, when the juvenile returned from the hospital, staff made no effort to contact the facility’s on-call nurse or any other mental health professional. Staff simply placed the youth in a restraint chair for four-and-a-half hours until the facility nurse arrived at work the next morning. This kind of delay is difficult to understand or excuse.
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ii. Lack of Equipment Having emergency equipment readily available to staff, and ensuring that staff are trained in the use of that equipment can make the difference between life and death in the context of suicide prevention. To take one basic example, security staff should have access to a cutting tool at all times in order to respond to attempts to commit suicide by hanging. Such a state of preparedness, however, does not exist in our judgment at HYCF. When our experts questioned HYCF personnel about proper suicide prevention procedures, the myriad of answers we received illustrated the inadequacy of the state of training. Consider the following: • One YCO did not know if there was a written suicide policy, but stated that, were she to encounter a youth hanging himself/herself, she would cut the youth down. But she acknowledged that there are no cut-down tools at the facility nor we should even know where she might find a knife or scissors.8 She then changed her mind and said she would call a “Code Red” and hold up the youth until others arrived.9 • Another YCO indicated that, in such a scenario, he would attempt to cut down the youth, but that he did not know where he would find scissors, a knife, or other cut-down tools. • Yet another YCO said he would call “Code Red” and wait for other staff to arrive. The YCO added that he would proceed with caution in case the suicide attempt was a “set up” by the youth.

8

The nurses reported that they have ordered and received

cut-down tools, which are stored in the infirmary. These tools

are not accessible by security staff.

9

A “Code Red” is called when emergent conditions exist.

Staff leave their assigned posts and rush to the location of the

crisis. This practice places youth in danger as HYCF suffers

from chronic staff shortages and youth who are supposed to be in

the care of Code Red responders are left unsupervised for great

lengths of time.

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d. Unsafe Housing of Youth at Risk of Self-Harm It is also imperative that potentially suicidal youth be housed in living quarters that are suicide resistant. HYCF lacks such an infrastructure. At the time of our tour, the cells and housing modules presented structural hazards that posed substantial risks to suicidal youth. Set forth below is a list of the hazards identified during our visit: • Each cell had two metal grilles that covered air vents. These grilles had perforations through which a youth could thread a piece of plastic or cloth to hang himself.10 • The sinks within the cells had bases that projected from the wall. A youth could fashion a noose to hang himself from that type of sink. • Many of the cells had broken floor tiles. A youth could break off a portion of the tile and use the shard as a cutting tool to harm himself. • The shower stall in the isolation area by the central control center had a shower head large enough for a youth to use it to affix a noose and hang himself. Fortunately, our consultant advised that the State could fix many of the hazards quickly and at minimal cost. To its credit, the State has promptly responded to our consultant’s remarks. In a November 23, 2004 letter, the State indicated that it had removed the metal grilles and installed new vents, started to retrofit sink bases with arc-welded stainless steel skirting, replaced shower heads, removed and replaced floor tiles, and installed 20 fiberglass beds in the girls’ unit.11
2. Staff Abuse
10 On December 23, 2003, security staff found a youth hanging from a rope braided from his mattress and threaded through the grille vent in his cell. 11 At the time of our tour, the girls’ unit was outfitted with bunk beds, from which one of the youth had attempted suicide by hanging.
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Another concern revealed by our investigation was occasional physical abuse of youth by HYCF staff. Such abuse often occurs during “takedowns,” when YCOs use physical management to control a youth. While force may be justified in certain circumstances, it appears that YCOs use the takedown as the first level of force. To be sure, there is no constitutional requirement that correctional facilities use the absolute minimal amount of force necessary to control a disruptive youth. But the practices at HYCF tend to exacerbate the already difficult task of rehabilitation. Moreover, the absence of any policies or procedures governing use of force, not to mention the lack of training in proper procedures and techniques, incubates an environment that is receptive to abuse.
a. Lack of Training and Proper Technique During our tour of HYCF we asked YCOs about the proper methods for employing physical force. Few, if any, of the answers comported with methods condoned in either adult corrections or juvenile justice. Indeed, the answers provided by YCOs indicated that security staff may be employing tactics that pose a grave risk of injury or death. For example: • One YCO reported that he lays on top of a youth and uses his considerable weight to smother and restrict the movement of the youth. The YCO stated that he would get up off the youth only when the youth stopped struggling. The use of such a method presents the real possibility of positional asphyxiation. • Another YCO reported that she uses the “chicken wing” to restrain youth. The YCO explained that she comes up to the youth from behind and wraps her arms around the youth’s arms at the elbows, then pulls the youth’s arms together toward the center of his back. • Yet another YCO stated, with respect to the use of force, “For juveniles, anything goes.” In the absence of policies governing uses of force and training, it appears that YCOs feel justified in using whatever force they deem appropriate, regardless of the threat posed. This trend has not gone unnoticed by other staff or administrators. In October 2003, a nurse sent a memorandum to the then-Acting Administrator and stated that takedowns at HYCF had become “more frequent,” “appear to be escalating,” and that
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the amount of force “appears to be on the verge of excess.” Meanwhile, the nurse continued, “injuries are becoming more severe . . . resulting in more Emergency Room visits.” The physician providing services at the facility noted that he had informed facility and OYS administration via memorandum that the “[r]isk of being killed in a takedown is a real possibility” due to lack of training on the part of YCOs. Despite the concerns expressed by the medical staff, the State did not provide YCOs with any training in the use of force.
b. Examples of Abuse Our investigation uncovered numerous disturbing uses of excessive and unnecessary force by YCOs. The following examples are illustrative: • In September 2004, a YCO tackled a youth for refusing to enter his room. The YCO placed the youth in a choke hold with the youth’s face pressed against the officer’s stomach and the officer’s feet wrapped around the youth. Another YCO gouged the youth’s eyes with his fingers. The YCOs then placed the youth in handcuffs and hogtied him. • In July 2004, a YCO choked a youth for ten seconds, applying enough pressure to leave red hand prints on the youth’s neck. • On June 11, 2004, a YCO physically assaulted a youth during an argument over whether the youth could have cereal for an evening snack. The YCO shoved the youth and punched him, first in the back of the head and then to the face and body. The YCO slapped the youth, choked him, and threw him against the wall. The youth did not fight back. When questioned during an internal investigation, the YCO conceded that he “just lost it.”12
12 An internal investigation found substantial evidence that a supervisor attempted to stifle any investigation of the incident. The supervisor hid documents regarding the incident and attempted to bargain with the assaulted youth in order to obtain his silence. The investigation began only after a youth who had witnessed the assault encountered the Administrator at lunch and informed her of the incident.
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• On February 1, 2004, a youth reported that during a takedown, a YCO held him from behind in a choke hold, punched him in the face, slammed him against the wall, and then punched him in the nose. The youth suffered numerous injuries including a nose bleed, an abrasion to the side of his head, and a reddened area around the side of his neck and throat.
• On January 21, 2004, a YCO grabbed, squeezed, and twisted the testicles of a youth for at least 15 seconds as the youth lined up to return to school. When the youth sought medical attention, the YCO encountered the youth outside the medical unit, laughed at him, and mockingly asked: “What, you want me to grab your balls again?” An internal investigation of the incident indicated that the YCO had grabbed the genitals of other youth on at least two separate occasions as well.13
• YCOs abused a youth on four separate occasions over an eight-week period in the Fall of 2003. On August 25, 2003, the youth complained to the HYCF nurse of headaches after a YCO punched him in the face during a takedown. Less than three weeks later, on September 12, seven to eight YCOs threw the youth to the floor multiple times and rubbed his face in the ground when he refused to go into his cell; the youth suffered bruises and abrasions on his face, back, chest, shoulder and knee. The following month, on October 8, the youth was the subject of an unprovoked attack by a YCO, who elbowed him in the head, arm, and chest. Finally, on October 22, the youth suffered head trauma after four or five YCOs restrained him; a facility nurse noted multiple facial, head, and neck abrasions, including the imprint of a watchband on his trachea and abrasions possibly resulting from a shirt twisted tightly around his neck.
• On June 31, 2003, a YCO separated two youth who were engaged in a fist fight. In the process, the YCO slapped and punched one of the youth. The YCO later entered the youth’s cell and punched him in the face. c. Failure to Investigate Abuse
13 The State indicted the YCO for Sexual Assault in the Third Degree on September 15, 2004.
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Equally disturbing, the State fails to properly investigate staff abuse of youth at HYCF. In 2004, the State completed only four internal investigations of reported abuse. As of December 31, 2004, at least 17 allegations of abuse from 2003, and two from 2004, are pending investigations. Our review also found many allegations of abuse that were not under investigation at all.
We reviewed medical reports, youth grievances, and incident reports from July 1, 2003 through August 31, 2004 for evidence of staff-on-youth violence.14 We identified 37 incidents where facility documents identified physical contact between a staff member and youth that led to an injury suffered by the youth. Not a single one of the incidents had been investigated. For example, in February 2004, a youth filed a grievance stating that two YCOs slammed him against a metal door and punched him in the nose. Contemporaneous medical reports substantiated the youth’s injuries and reiterated his claims of abuse. Yet there is no mention of the February 2004 incident in the list of pending investigations. Interestingly, as of July 2004, the list of pending investigations showed four other allegations of abuse against this particular juvenile, including allegations that YCOs “clotheslined” him, punched him, kicked him, and twisted his arm in 2003.
Those investigations that the State does complete are often deficient in any event. Of the two investigations we reviewed from 2004, for example, we found that youth made serious allegations of staff abuse that the facility apparently opted not to pursue.15 In one, a youth informed an investigator that he had seen a YCO, who was not then under investigation, arrange for another youth to organize a “hit,” or physical assault, on a fellow juvenile resident. Although the youth stated that the YCO
14 The haphazard practice of documenting incidents further hampers attempts to eliminate staff abuse. We found that staff routinely fail to document uses of force either in the logs kept on each unit or in specific forms completed when staff apply force. 15 The State provided a list of HYCF’s internal investigations. The State completed four investigations in 2004 -- two from 2003 incidents and two from 2004 incidents. In this section, we limit our discussion to the investigations of the two most recent incidents.
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no longer worked at HYCF, it was impossible to verify this fact because the investigator never asked for the YCO’s identity. Nor did the investigator refer the allegation to administrators for internal or criminal follow-up. Such a serious accusation warranted much more scrutiny than what was given.
3. Youth Assaults The law requires that juvenile justice institutions adequately protect youth from assault by other youth. Redman, 942 F.2d at 1441 n.7. The State often fails to live up to that obligation. Part of the problem can be attributed to the absence of a classification criteria for housing youth. At present, security staff place youth committed for short periods of time at Ho’okipa and youth committed for longer terms at SCF. Within SCF and Ho’okipa, staff place aggressive youth with vulnerable youth regardless of the risk of harm. The lack of supervision of youth is another contributing factor. The State has employed an insufficient number of staff at HYCF to monitor youth, and the staff that are employed there have no training in adequate monitoring procedures. As a result, youth are frequently able to exploit the gaps in supervision and harm other juveniles. The following examples are emblematic of the widespread problem of youth-on-youth violence at HYCF: • On October 6, 2004, a youth sexually assaulted another youth who was sleeping at the time. The victim and the perpetrator lived in a communal dormitory at the Ho’okipa Cottage. According to the statements of witnesses, the YCOs assigned to the cottage were in the kitchen and were not observing the youth in the dormitories.16 As the youth slept, the perpetrator placed his penis on the mouth of the victim. The victim and another youth present in the dormitory at the time of the assault both indicated that this was not the first time the alleged perpetrator had acted out against the victim.
16 It was reported that three YCOs were on duty at the time. -16­


• On or around August 24, 2004, several youth “mobbed,” or jointly assaulted, another youth. There is no documentation indicating that the youth received medical attention. Further, security staff did not write injury or incident reports describing the attack. However, approximately two weeks later, the facility doctor noted that the youth had coughed up blood and complained that his right side hurt. Four weeks after the incident, the doctor noted that the youth still suffered from “iliac chest pain secondary to being kicked” four or five weeks prior.
• On July 14, 2004, a fight broke out between two youth in the day room of a housing unit. One youth struck another youth in the mouth with a pool stick. The victim grabbed the pool stick and struck the offender’s hands.
• On May 24, 2004, a youth came up behind another youth sitting in a chair and struck him in the head with a dust pan. The victim bled profusely from a laceration starting at the top of his head and extending down to the forehead. It took ten stitches to close the wound.
• On April 20, 2004, a youth hit another youth in the face, giving him two black eyes. The victim’s right eye was swollen almost completely shut. The YCO on duty waited two days to inform the medical unit of the youth’s injury.
• On February 17, 2004, a youth repeatedly punched another youth in the head and face, giving him two black eyes. The YCOs on duty did not report the injury at the time of the assault.
• On November 3, 2003, three separate youth-on-youth assaults occurred in rapid succession. First, a youth hit another youth with a closed fist. While two YCOs took down the initial aggressor, a second youth assaulted another youth with a closed fist. A YCO tackled the second aggressor at the same time another YCO placed the juvenile in a restraining hold. AS YCOs attempted to put all the youth back in their modules, a third youth punched another juvenile in the jaw. 4. Disciplinary Isolation Staff at HYCF isolate youth in their cells as part of “lock
down” procedures for significant periods of time. We do not -17­


suggest that these lock downs are facially unconstitutional or even unwarranted in all circumstances. See Sandin v. Conner, 515 U.S. 472, 485-86 (1995). But HYCF appears to ignore completely the adverse psychological side effects of prolonged isolation and, more importantly, seems to have adopted no standards governing when such confinement procedures may be validly employed.
Staff often confine juveniles to their cells simply because an insufficient number of YCOs have reported to work or because it is considered convenient for staff. A review of shift logs indicated that youth at HYCF routinely endure lock down for days on end. This practice has fomented tension amongst the juveniles and led to an increase in violence. It also has precipitated greater amounts of self-injurious behavior. HYCF residents consistently told us that they grow so frustrated or bored from the excessive use of lock down, that they choose to strike walls or doors with their fists rather than hit other youth or a YCO.
On a related note, during the course of our tour, we noted that many youth had carved and cut into their skin. Indeed, we noted that youth had visible cuts on their arms, legs, and faces. In explaining this physical desecration, the juveniles stated that, out of sheer boredom while confined to disciplinary isolation, they use plastic shards, paper clips, and the like to carve their flesh. We were particularly disturbed by the level and prevalence of cutting by female youth. All but one girl readily admitted that she cut herself. It appears that staff at HYCF have done little, if anything, to prevent youth from disfiguring themselves in this manner.
We also have serious misgivings about, and are concerned over the possible unconstitutionality of, the lack procedural protections afforded to youth who are placed in disciplinary isolation. Assuming a liberty interest can be established against HYCF’s often long-term and baseless placement of juveniles into isolation, procedural due process interests would be implicated. See Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (2005). Hawaii, however, offers not even minimal procedural protections to youth who are placed in disciplinary isolation. Indeed, YCOs unilaterally mete out discipline, frequently without any knowledge or oversight from supervisors or administrators. As far as we can tell, there are no controlling policies or procedures as to when lock downs may be validly employed.
5. Lack of Supervision -18­


a. Staff Shortages HYCF suffers from chronic staff shortages. Administrators informed us that the exigencies of staff shortages have created a situation where YCOs unilaterally choose when to report for work. Few, if any, scheduled staff report for duty on weekends. The former Acting Administrator informed us that, on Saturdays, it was a regular occurrence that only two YCOs were on duty to monitor three modules at SCF.17 Staffing shortages became so severe at one point that administrators were forced to use non-YCOs, such as social workers, food service workers, and maintenance employees, to supervise housing units. The lack of staff poses a severe threat to the safety of youth. Administrators stated that they often “hold over” staff, requiring YCOs to remain at their posts, if possible, beyond their tour of duty. YCOs informed us that they frequently are called on to work two consecutive shifts (despite not being scheduled to do so), and that it was not uncommon to work three or four shifts in a row. As a consequence, YCOs are exhausted, tend to sleep while on duty, and consequently fail to supervise youth adequately.
b. Exploitation of Youth We received multiple credible complaints that YCOs exploited youth. For example, in June 2004, the Youth Facility Administrator issued a memorandum stating that she had received “numerous complaints from (youth) and their families concerning (youth) being coerced to give food and personal items to staff” in exchange for “special favors” and “preferential treatment.” Staff, she continued, also had been granting “extra privileges to youth by providing them with cigarettes for smoking in cells” and permitting them to stay up later than other youth. Incredibly, she added that some families complained of getting requests from juvenile residents to bring extra food and treats for YCOs during visits. The Youth Facility Administrator ordered staff to cease the practices immediately.
17 In response to our initial document request, HYCF provided us with a staff roster listing 51 youth corrections staff including 40 YCOs and 11 youth corrections supervisors.
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6. Inadequate Grievance System Although prisoners do not have a “claim of entitlement to a grievance procedure,” Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), “[t]he right of meaningful access to the courts extends to established prison grievance procedures,” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (holding that a prisoner’s First Amendment right to petition the government for redress of grievances encompasses the filing of inmate administrative appeals). HYCF’s grievance system is dysfunctional. The most significant legal deficiencies with the grievance system at HYCF are the difficulty in filing claims and the common presence of intimidation and retaliation against those youth who are able and dare to do so. The difficulty in submitting grievances is a problem whose source is easy to identify. Prior to August 2004, youth could only obtain grievances from YCOs or medical staff.18 And in effect, YCOs were the sole source of grievance forms given that youth were frequently under lock down and needed the supervising YCO’s consent for travel to the medical unit.19 But even if forms were readily available, many youth would be reluctant to use the grievance process because, based on the documents we read and interviews we conducted, the subjects of the complaints – typically, the supervising YCOs – often retaliate against the complainants. See Bradley, 64 F.3d at 1279 (right of access to facility’s grievance procedure is violated when staff retaliate against inmate for having filed grievance). More disturbingly, administrators repeatedly told us that staff at HYCF actively work to hinder investigations. The former Acting Administrator informed us that attempts to investigate alleged acts of abuse by staff were met with intransigence and deliberate interference from staff. When conducting an investigation, the former Acting Administrator stated that he
18 Per memorandum dated August 4, 2004, the Administrator instituted a new grievance policy mandating that all staff, including education and mental health staff, provide youth with grievance forms. Unfortunately, during our October 2004 tour, we found that staff did not consistently follow this directive. 19 Medical staff stated that they advise youth to schedule a medical appointment in order to file a grievance.
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would only talk to youth and YCOs “with [a] conscience.” When asked to clarify, he observed that “if you talked to the wrong [YCO], you paid the price in staff shortages.” YCO “sick-outs” reportedly paralyzed the institution and occurred on a routine basis when investigations were pursued. Incredibly, the former Acting Administrator stated that the target of, and witnesses to, an investigation often fail to report for duty for weeks on end in order to stifle the investigation. Nor are unscheduled absences to hinder investigations limited to the target or his/her associates; a supervisor tasked with conducting one particular investigation ceased appearing for work altogether and the investigation ultimately ground to a halt. The former administrator with whom we spoke conceded that he simply could not complete investigations because the institution was unable to endure the inevitably corresponding absences by YCOS.20
B. INADEQUATE ACCESS TO MENTAL HEALTH AND MEDICAL CARE Like any individual incarcerated in a state correctional
facility, juveniles are entitled to have access to adequate medical and mental health care. Our investigation strongly suggested that youth at HYCF have inadequate access to such care. HYCF contracts with outside providers for medical and mental health services. But a lack of communication between HYCF staff and the outside providers, as well as communication breakdowns between the different outside providers themselves, impedes the delivery of proper care. In addition, security staff frequently use the control they have over the movement of juveniles at the facility to restrict or deny altogether the provision of adequate medical and mental health care.
Poor communication between professional staff, including the mental health staff, medical staff, and social workers, is a barrier to proper care at HYCF. Virtually none of the professionals communicate in a systemically effective manner with their colleagues. For example, the providers of psychiatric care prepare weekly mental health reports for each youth and give those reports to the administrators. But the reports are not shared with either the social workers or the counselors.
20 The disappearance of evidence also hampered internal investigations. The former Acting Administrator reported that he attempted to locate a video tape from surveillance cameras that recorded a use of force by a YCO. Te tape on which that incident was recorded was missing and never found.
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Similarly, reports prepared by the social workers and counselors are not transmitted to the psychiatric care providers. As a result, mental health workers make decisions about medication and counseling without full knowledge of the needs of youth.
The complete control of YCOs over communication between the facility’s youth residents and its professional staff is another, even greater, impediment to the delivery of adequate care. We acknowledge, of course, that security needs dictate a certain degree of restrictions on communications. The problem is that security staff have received no training whatsoever in the detection of mental health or medical problems, nor are there any policies guiding YCOs in dealing with youth with such issues. In essence, staff operates in a vacuum. Perhaps not surprisingly in such an environment, we found that YCOs routinely fail to alert mental health staff or on-site medical professionals when youth are in emergent need of care.
We were also concerned by the YCOs’ apparent failure to ensure that youth who either commit acts of self-harm or are involved in physical altercations receive timely medical care. We compared incident reports with medical records and found that there were many instances where security staff stated that youth received care, yet there were no medical reports to substantiate the claim. The following examples are illustrative: • On July 1, 2004, two youth engaged in a fist fight. A
contemporaneous memorandum written by a YCO indicated that one of the youth requested and received a visit from the nurse. The documents provided by the State did not include a medical report from this incident. • On April 20, 2004, one youth struck another youth in the face. The YCO waited approximately two days to notify the medical unit, at which time the YCO stated that a youth had a black eye but that he did not know how it happened. Medical staff made three requests to see the youth but were told that there were no YCOs to escort the youth to the medical unit. Medical staff finally conducted an exam in the youth’s cell. • On April 14, 2004, one youth slapped and punched another youth repeatedly. The assailant claimed that she had assaulted her victim at the victim’s request. An internal memorandum from a supervisor documenting the incident does not indicate whether any medical attention was sought for
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the youth. Nor do any of the other medical or mental health reports provided by the State indicate whether the victim received treatment. • On January 15, 2004, a youth struck another youth with a closed fist to the youth’s head, and two YCOs restrained the aggressor. A contemporaneous memorandum written by a YCO indicated that one of the juveniles received medical attention. The documents provided by the State did not include a medical report from this incident. • On January 13, 2004, two juveniles were engaged in a fist fight. A contemporaneous memorandum written by a YCO indicated that one of the youth received medical attention. The documents provided by the State did not include a medical report from this incident. • On December 19, 2003, two youth fought during breakfast. A YCO used physical force to place a youth in his cell. The youth reportedly had a bloody mouth after the incident. No medical reports document either incident. Documents provided by the State did not include medical or mental health reports indicating that the victim received treatment. • On October 10, 2003, two youth punched each other, causing one to be taken to the medical center. The documents provided by the State, however, did not include a medical report from the incident. • On September 8, 2003, a youth assaulted another youth in the day room of one of the modules. The victim curled up on the floor and received several blows to the head. A YCO shoved the perpetrator and held him against the wall. Although a contemporaneous memorandum written by the YCO indicated that a “nurse looked at” one youth and “everything seemed okay,” the documents provided by the State did not include a medical report from the incident. • On August 25, 2003, a YCO allegedly slammed the cell door on a youth’s hand, breaking one of the fingers. The youth spoke with a social worker and requested that the social worker contact his mother so she could file a formal complaint. The youth declined to file a grievance stating that he feared retaliation by the YCO. The documents
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provided by the State did not include a medical report from this incident.21 • On August 25, 2003, two juveniles were injured in a fight. There are no medical records of the injuries sustained by either youth. Additionally, one of the juveniles claimed that, in breaking up the fight, a YCO purposely punched him in the face and that the blow was not part of the take down. The youth stated that there was a small area of swelling on his forehead and that he experienced headaches following the incident. The documents provided by the State did not include a medical report from this incident. • On August 20, 2003, at 6:00 p.m. a youth was hit in the eye while playing basketball. The nurse was not notified until the next morning at 11:00 a.m. and reported that the youth’s right eye was swollen and discolored. C. INADEQUATE ACCESS TO EDUCATION INSTRUCTION FOR YOUTH
WITH DISABILITIES The Olomana School at HYCF provides instruction to all youth at HYCF, with the exception of those youth who have received a high school diploma.22 HYCF has adequate educational resources. We found the educators to be dedicated and enthusiastic about their mission to educate some of Hawaii’s most challenging youth. Unfortunately, despite the richness of educational resources, and the desire of educators to teach juveniles confined at the facility, we found that the HYCF violates the statutory rights of youth with disabilities by failing to provide them with access to special education instruction and resources. The fault lies not with the educators. The problem, instead, is that security staff routinely cancel school and prevent youth with disabilities from receiving the services to which they are entitled.
21 The social worker’s failure to take the initiative to notify her supervisors of the youth’s allegation is another example where staff have been aware of abuse yet not reported it for further investigation. 22 Educators at the Olomana School are employees of the Hawaii Department of Education.
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1. Educational Requirements In states that accept federal funds for the education of children with disabilities, as does Hawaii, the requirements of the IDEA apply to juvenile facilities. See 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.2(b)(1)(iv). Further, the requirements of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, also apply to HYCF.23 Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988) (Section 504 applies to the provision of qualified sign language interpreters for deaf inmates in state correctional programs which receive federal financial assistance). The law forbids states from denying youth with a disability access to educational programs funded in part by the federal government. Pursuant to the IDEA and Section 504, the State must ensure that youth who are entitled to receive special education services have access to such services. As of November 7, 2004, educators had identified approximately 63% of HYCF youth as having a learning disability and entitled to services under the IDEA.24 Educators also had identified an additional 14% of youth at HYCF as having a disability and entitled to services under Section 504.25 Added together, over 77% of the youth at HYCF were entitled to services under either the IDEA or Section 504. We found that these youth did not consistently receive those services in violation of federal law.
23 Section 504 of the Rehabilitation Act of 1973 prohibits States from excluding persons with a disability from participating in or benefitting from any State program or activity receiving federal financial assistance. The protections of this law, which apply to State prisons are extended to any person who: (i) has a physical or mental impairment that substantially limits one or more of such person’s major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment. 24 Behavioral counselors at HYCF estimated that the number of youth at HYCF entitled to receive special educational services has ranged from 50% to 90% over the past two years. 25 The youth identified as entitled to services under Section 504 did not qualify for services under the IDEA.
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2. Lack of Access to Educational Services Special education laws under Title I of the IDEA require the State to provide each youth with a free and appropriate public education. 20 U.S.C. § 1412(a)(1)(A). In order to fulfill this obligation, the State must provide youth with an education that meets the standards of the State’s educational agency. See 20 U.S.C. § 1401(a)(A)(11)(A)(ii)(II); 34 C.F.R. § 300.300; Haw. Rev. Stat. § 302A-436; Haw. Code. Reg. § 8-56-3. The education provided to juveniles at HYCF often does not meet these standards because of the constant denial of access to education instruction by security staff. In discussions with educational staff, we learned that as of October 5, 2004, none of the youth had attended a full day of school since June 2004. During that time period, youth did not attend school for days on end. Security staff made the choice whether or not youth would attend school. The Olomana School educational staff stated that each day when they show up for work, security staff inform them if classes will be held that day. While it is difficult (and generally not our role) to second-guess security decisions, the frequency of school cancellations at HYCF is quite troubling.
III. REMEDIAL MEASURES In order to rectify the identified deficiencies and protect the constitutional and statutory rights of youth confined at HYCF, the State should implement, at a minimum, the following remedial measures: A. PROTECTION FROM HARM
1. Train existing staff so that they perform their duties adequately and ensure that all staff demonstrate an understanding of and demonstrate the application of applicable skills. Ensure that there are sufficient, adequately trained staff to safely supervise youth.
2. Develop and implement adequate policies and procedures to ensure that youth who are at risk of suicide and youth who are at risk of engaging in self-injurious behavior are properly identified, supervised, and treated.
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3. Provide staff with adequate training and equipment to identify and supervise youth at risk for suicide, and to intervene effectively in the event of a suicide attempt. Provide staff with training on the facility’s suicide prevention policy, including the different levels of observation and the types of precautions that should be taken.
4. Remedy all suicide hazards in areas where youth with suicidal ideations may be potentially housed.
5. Develop and implement adequate policies and procedures to ensure that youth are adequately protected from physical violence committed by staff and other youth.
6. Develop and implement adequate policies and procedures regarding the proper use of force by YCOs and staff.
7. Develop and implement adequate policies and procedures to ensure that staff are adequately trained in safe restraint practices, that only safe methods of restraint are used, and that restraints are used only in appropriate circumstances.
8. Develop and implement adequate policies and procedures to ensure that staff adequately and promptly document and report all uses of force, incidents of violence, injuries and misconduct.
9. Develop and implement adequate policies and procedures to ensure that all incidents of violence, use of force, or serious injury are adequately investigated and that appropriate personnel actions and appropriate systemic remedies are taken in response to substantiated findings.
10. Develop and implement adequate policies and procedures to ensure an adequate classification system to house youth appropriately and safely.
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11. Develop and implement adequate policies and procedures to ensure that staff do not exploit youth.
12. Develop and implement adequate policies and procedures to ensure that youth have access to a functional and responsive grievance process.
13. Develop and implement policies and procedures to ensure that staff do not intimidate or retaliate against youth who file grievances.
B. ACCESS TO MENTAL HEALTH AND MEDICAL CARE 1. Provide youth with adequate access to mental health care and ensure that appropriate interdisciplinary communication to facilitate mental health treatment occurs. 2. Provide youth with adequate access to medical treatment.
C. ACCESS TO EDUCATION INSTRUCTION FOR YOUTH WITH DISABILITIES 1. Provide youth with learning disabilities adequate special education instruction. 2. Develop and implement adequate individualized education programs, including vocational education, for youth with learning disabilities. 3. Develop and implement appropriate Section 504 plans for all eligible youth. * * * * * *
During the exit interview at our on-site tour, we provided State officials with preliminary observations made by our expert consultant. State officials and facility staff reacted positively and constructively to the observations and recommendations for improvements. The collaborative approach the parties have taken thus far has been productive. We hope to be able to continue working with the State in an amicable and cooperative fashion to resolve deficiencies previously noted Provided that our cooperative relationship continues, we will
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forward our expert consultant’s report under separate cover. Although the report is his work - and does not necessarily reflect the official conclusions of the Department of Justice the observations, analyses, and recommendations provide further elaboration of the issues discussed in this letter and offer practical assistance in addressing them.
We are obligated to advise you that, in the unexpected event we are unable to reach a resolution regarding our concerns within 49 days after your receipt of this letter, the Attorney General is authorized to institute a lawsuit pursuant to CRIPA to correct the noted deficiencies. See 42 U.S.C. § 1997b(a)(1). We would very much prefer, however, to resolve this matter by working cooperatively with you. And we have every confidence that we will be able to do so. The lawyers assigned to this matter will be contacting your attorneys to discuss this matter in further detail. If you have any questions regarding this letter, please call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,
/s/ Bradley J. Schlozman
Bradley J. Schlozman Acting Assistant Attorney General
cc: The Honorable Mark J. Bennett Attorney General Sharon Agnew
 Executive Director
 Office of Youth Services
 Kaleve Tufono-Iosefa
 Youth Facility Administrator
 Hawaii Youth Correctional Facility
 Patricia Hamamoto
 Superintendent
 Hawaii Department of Education

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The Honorable Edward H. Kubo, Jr.
 United States Attorney 
 District of Hawaii
 The Honorable Margaret Spellings
 Secretary
 United States Department of Education 
 The Honorable John H. Hager
 Assistant Secretary
 Office of Special Education and Rehabilitative Services
 United States Department of Education
 Patty Guard
 Acting Director
 Office of Special Education Programs
 United States Department of Education

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 Memorandum of Agreement Between
the United States and
the State of Hawai’i

TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 3 
 II. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 5 
 III. CONSTITUTIONALLY REQUIRED CARE. . . . . . . . . . . . . 8
 IV. SUBSTANTIVE REMEDIAL MEASURES . . . . . . . . . . . . . 8

A. PROTECTION FROM HARM . . . . . . . . . . . . . . . 8 
 B. TRAINING . . . . . . . . . . . . . . . . . . . . . 17
 C. ACCESS TO MEDICAL AND MENTAL HEALTH CARE. . . . . . 19
 D. SPECIAL EDUCATION . . . . . . . . . . . . . . . . . 21
 V. COMPLIANCE AND QUALITY IMPROVEMENT . . . . . . . . . . . 21 
 VI. MONITORING AND ENFORCEMENT . . . . . . . . . . . . . . . 23
 VII. REPORTING REQUIREMENTS AND RIGHT OF ACCESS . . . . . . . 26
 VIII.IMPLEMENTATION AND TERMINATION . . . . . . . . . . . . . 27

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I. INTRODUCTION
(A) This Memorandum of Agreement (“Agreement”) resolves litigation concerning protection from harm, access to medical and mental health care, and special education claims, and therefore settles all claims asserted in United States v. Hawai’i, Civil No. [________] (D. Haw) (referred to herein as the “litigation” or the “lawsuit”). This litigation concerned conditions of confinement at the Hawai’i Youth Correctional Facility (“HYCF”) in Kailua, Hawai’i, and was brought pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”).
(B) From October 5, 2004 to October 8, 2004, the United States toured HYCF with a consultant in the field of juvenile justice. On October 26, 2004, the United States conducted individual interviews with each of the girls from HYCF temporarily placed at the Salt Lake Valley Detention Center in West Salt Lake City, Utah.
(C) Throughout the course of the investigation, the United States received complete cooperation from the State. The State permitted access to HYCF and provided requested documents.
(D) On August 4, 2005, the United States issued a findings letter pursuant to 42 U.S.C. § 1997(a)(1), which concluded that certain conditions at HYCF violated the constitutional and federal statutory rights of youth confined in the facility.
(E) In order to resolve all claims in the litigation, including the protection from harm, access to medical and mental health care, and special education claims, the parties have entered into this Agreement, which, if complied with by State of Hawai’i (“State”) officials within the time frames specified below, will result in the lawsuit remaining dismissed and the filing of a joint stipulation for final dismissal with prejudice.
(F) The terms of this Agreement shall apply to HYCF. If the State closes HYCF and transfers youth to a state-run facility substantially similar to HYCF or, without closing HYCF transfers all girls or 20 or more youth to another state-run facility which provides services substantially
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similar to HYCF, the applicable and relevant terms of this Agreement will also apply to the new state-run facility. The State reserves the right to transfer youth to a private facility. If the State transfers youth to a private facility which is substantially similar to HYCF, the State shall do everything in its power to facilitate DOJ’s inspection of the conditions of care at that facility. The State will not transfer youth out of HYCF in order to attempt to avoid compliance with this Agreement or any constitutional requirements.
(G) The State enters into this Agreement because it is firmly committed to providing legally adequate conditions at HYCF by instituting the remedial measures required by this Agreement.
(H) This Agreement does not constitute an admission of liability by the State.
(I) Defendants named in the lawsuit were the State; Linda Lingle, Governor of Hawai’i; Lillian B. Koller, Director of the Hawai’i Department of Human Services; Sharon Agnew, Director of the Office of Youth Services; Patricia Hamamoto, Superintendent, Hawaii Department of Education; Kaleve Tufono-Iosefa, HYCF Administrator.
(J) This Agreement is not intended to have any preclusive effect in the litigation or in any other proceeding. Should the issue of the preclusive effect of this Agreement be raised in any proceeding, the parties agree to certify that this Agreement was intended to have no such preclusive effect.
(K) This Agreement shall not be used against the State in any proceeding other than a proceeding as between the United States and the State. Further, if the Agreement is introduced in a proceeding as between the United States and the State, evidence shall not be admitted as to the State’s compliance or noncompliance with the Agreement and nothing in the Agreement shall be relevant to the required constitutional standards.
(L) Nothing in this Agreement shall prevent the State from modifying or closing HYCF, or developing alternative community placements for the youth currently in the facility.
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(M) No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. This Agreement is not intended to impair or expand the right of any person or organization to seek relief against the State or its officials, employees, or agents for their conduct; accordingly, the Agreement does not alter legal standards governing any such claims, including those under Hawai’i law.
II. DEFINITIONS
In this Agreement, the following definitions shall apply:
(A) “HYCF” means the Hawai’i Youth Correctional Facility located at 42-477 Kalanianaole Highway, Kailua, Hawai’i.
(B) “Close Observation” means documented visual observation of youth at all hours and interaction with youth during waking hours periodically, but at least every ten minutes round the clock.
(C) “DOJ” means the United States Department of Justice, which represents the United States in this matter.
(D) “Defendants” means the State; Linda Lingle, Governor of Hawai’i; Lillian B. Koller, Director of the Hawai’i Department of Human Services; Sharon Agnew, Director of the Office of Youth Services; Kaleve Tufono-Iosefa, HYCF Administrator; and their successors, contractors and agents.
(E) “Effective Date” means the date the lawsuit is conditionally dismissed by the Court.
(F) “Implement” means to give practical effect and ensure actual fulfillment by concrete measures, including appropriate training of relevant staff.
(G) “Include” or “including” means “include, but not be limited to” or “including, but not limited to.”
(H) “Isolation” means placement of a youth alone in a locked room, and includes such practices as lockdown, seclusion, and early dorms. The term isolation does not apply to
5


locking a youth in a room during normal sleeping hours, with normal sleeping hours not to exceed 8 to 10 hours, as long as any period in excess of 8 hours is as part of a behavior modification and/or level system for the youth and not associated with discipline or punishment of the youth (such as “early dorms”).
(I) “OYS” means Office of Youth Services within the Hawai’i Department of Human Services that oversees the safety, treatment, and rehabilitation of youth residing at HYCF.
(J) “Precautionary Direct Supervision” means continuous staff observation of a youth, or direct eyeball supervision.
(K) “Qualified medical professional” means a physician, nurse, or other medical provider licensed and sufficiently trained to provide the services he or she undertakes to provide.
(L) “Qualified mental health professional” means a psychologist, psychiatrist, or other mental health provider sufficiently trained to provide the services and possessing at least a Master’s degree in the relevant mental health field.
(M) “Quality Improvement Program” means a system of self-auditing and improvement to assess the implementation and effectiveness of all remedies instituted pursuant to this Agreement, to identify deficits that may exist, and to effectuate new measures to cure deficits identified.
(N) “Restraints” means devices or methods to control or limit the freedom of movement of a person’s limbs or which restrict movement of a person’s body or overcome resistance to external control. Restraints include the following:
(a) ”Security Restraint” means a mechanical restraint device, including handcuffs, leg irons, flex cuffs and transport belts or chains designed for the restraint of committed persons.
(b) “Chemical Agent Restraint” means an active chemical substance, such as capsicum spray, mace or tear gas (CS or CN), that is used to immobilize a person, overcome resistance to physical control, or to deter or stop activities that may cause personal harm to the individual or others.
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(c) “Therapeutic Medical Restraint” means soft physical restraints approved by the medical authority and applied only for medical or psychiatric purposes and used in conjunction with restraint chairs or beds.
(d) “Physical Restraint” means use of approved methods of physical force to effect control of a person’s limbs or body and limit the person’s ability to resist external control.
(O) “Self-Harm” means when a youth attempts or intentionally commits more than a minor injury to himself or herself. Self-Harm includes conduct by a youth in cutting or carving into his or her own skin or body.
(P) “State” means the Defendants as described in paragraph (II.D) above.
(Q) “Suicide Precautions” means any level of watch or observation or measures (including, but not limited to, Precautionary Direct Supervision and Close Observation) to prevent a particular youth from committing self-harm or suicide.
(R) “The facility” means the Hawai’i Youth Correctional Facility located at 42-477 Kalanianaole Highway, Kailua, Hawai’i, and any secure state-run facilities built or obtained to replace HYCF.
(S) “Train” means to appropriately instruct in the skills addressed, including ongoing assessment of mastery of instructional material. Training shall incorporate testing and instructional methods that establish minimal standards for defining staff competency. After the Effective Date of this Agreement, the State will submit the training curriculum and required number of training hours to the Monitor for review and approval.
(T) “Youth” means any juvenile or youth committed by a court to the custody of OYS and residing at HYCF or any secure facility used in place of HYCF during the operation of this Agreement.
III. CONSTITUTIONALLY REQUIRED CARE
The State does not concede that the terms in this Agreement
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are constitutionally mandated and reserves all rights in this regard. The sole purpose of this Agreement is to protect the constitutional rights of youth committed to HYCF, as well as those federal statutory rights identified herein.
IV. SUBSTANTIVE REMEDIAL MEASURES
A. PROTECTION FROM HARM
1. SUICIDE PREVENTION
(1) Development and Implementation of Policy The State shall develop and implement appropriate policies, procedures, and practices relating to suicide prevention, intervention, and supervision as set forth in this Agreement.
(2) Identification of Youth At Risk of Suicide The State shall develop and implement policies and procedures pertaining to the screening of youth in order to:
(a) place all newly-arrived youth under heightened observation until they can be assessed by a qualified mental health professional, except those youth who had previously been in the facility within the last 60 days need not be placed under such heightened observation if they had not been subject to any suicide precautions in their last stay at the facility and if there is no indicia that the youth is contemplating Self-Harm;
(b) request from the Oahu Family Court and the Hawai’i Juvenile Detention Center all mental health reports for each newly-arrived youth within one week of the youth’s arrival;
(c) place youth on Precautionary Direct Supervision when the youth has a documented history of suicide attempts or Self-Harm, has declared that he or she has recently contemplated or attempted suicide or Self-Harm, or has expressed or communicated a suicidal or Self-Harming plan;
(d) place youth on Close Observation where the youth reasonably appears to be at risk of suicide or SelfHarm but has no history of recent suicide or Self-Harm attempts and does not acknowledge a suicidal or SelfHarming plan;
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(e) create a system whereby mental health and medical staff have access to centralized medical and mental health records for youth in their care;
(f) require that all HYCF mental health staff appropriately utilize progress notes to document interactions with and/or assessment of suicidal youth; and
(g) facilitate appropriate communication between direct care, medical, and mental health personnel and outside providers of medical and mental health regarding the needs of suicidal youth.
(3) Suicide Risk Assessments, Evaluations, and Review of Files by Mental Health Staff The State shall develop and implement policies and procedures so that:
(a) qualified mental health professionals conduct timely suicide risk assessments using reliable instruments (including but not limited to the MAYSI assessment): (1) for all youth exhibiting behavior which reasonably may indicate suicidal ideation; (2) within 24 hours of the initiation of suicide precautions; (3) when determining whether to change the level of suicide precautions; and (4) when determining whether to remove suicide precautions;
(b) qualified mental health professionals evaluate youth who attempt or commit Self-Harm or have a history of Self-Harm; and
(c) mental health staff thoroughly review as appropriate all of a youth’s files, including medical files and any
case files, for documentation of any prior suicidal or Self-Harming behavior upon intake and again whenever the youth is placed on suicide precautions.
(4) Placement of Youth on Suicide Precautions The State shall develop and implement policies and procedures so that any staff member who identifies a youth as suicidal immediately shall place the youth on suicide precautions and refer the youth to a qualified mental health professional for assessment.
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(5) Mental Health Response to Suicidal and Self-Harming Youth Where a qualified mental health professional makes a determination that a youth represents a continuing risk of suicide or Self-Harm to himself, the qualified mental health professional shall write a plan for monitoring, intervention and care, and re-evaluation of the youth (“Mental Health Care Plan”). The Mental Health Care Plan shall provide that youth discharged from suicide precautions receive adequate follow-up treatment within the facility, according to the clinical judgment of the qualified mental health professional.
(6) Documentation of Youth on Suicide Precautions The State shall develop and implement policies and procedures so that direct care staff who supervise youth on suicide precautions:
(a) read the youth’s Mental Health Care Plan,
(b) document the following information during each shift in which the staff supervises the youth in such a way as to be accessible by other direct care staff:
(1) that the staff member read: (a) the type of precaution established by a qualified mental health professional or the youth’s removal from precautions; (b) the time the youth was placed on such precaution or removed; (c) the time of the youth’s last status re-evaluation by the qualified mental health professional and any modification or update to the Mental Health Care Plan;
(2) the housing location of the youth on precaution;
(3) for youth on Close Observation (or other periodic observation), the times of observation and an overall statement regarding the youth’s behavior, status, or emotional state for each time recorded; and
(4) for youth on Precautionary Direct Supervision (or other continuous observation), narratives detailing the youth’s behavior.
(7) Documentation of Youth at Risk of Self-Harm The State shall
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develop and implement policies, procedures, and practices so that incidents of Self-Harm by youth and youth at heightened risk of Self-Harm, and the actions taken to address such incidents, are documented.
(8) Access to Programs and Services by Youth on Suicide Precaution The State shall develop and implement policies and procedures so that youth on suicide precautions continue to receive programs and services, in accordance with safety and security needs, and in accordance with the clinical judgment of a qualified mental health professional.
(9) Step Down Levels of Observation The State shall develop and implement policies and procedures establishing a “step-down” level of observation whereby youth on suicide precaution are gradually released from the more restrictive levels of supervision to less restrictive levels for an appropriate period of time as established by qualified mental health professionals and documented in the youth’s care plan prior to the youth’s discharge from suicide precaution.
(10) Treatment Plans for Youth Discharged from Suicide Precaution The State shall develop and implement policies and procedures so that all youth discharged from suicide precaution continue to receive mental health treatment in accordance with the treatment plan developed by a qualified mental health professional, unless the qualified mental health professional determines that no such continued treatment is necessary.
(11) Access to Emergency Equipment The State shall provide direct care staff with immediate access to appropriate equipment to intervene in the event of an attempted suicide, including cut down tools, CPR microshields, and filled oxygen tanks.
(12) Safe Housing of Suicidal, Self-Harming Youth, and Youth in Isolation The State shall develop and implement policies and procedures so that all housing for youth on suicide precautions, at risk of Self-Harm, or in isolation is, in accordance with generally accepted professional standards, free of hazards that would allow youth to hang themselves or attempt suicide or commit acts of Self-Harm.
(13) Suicide and Suicide Attempt Review The State shall develop and implement policies and procedures so that appropriate
11


staff review all suicides and suicide attempts for policy and training implications.
2. STAFF ABUSE AND YOUTH ASSAULTS
(14) Protection from Harm The State shall provide youth confined at HYCF with reasonably safe living conditions and shall appropriately protect youth from violence and other physical or sexual abuse by staff and other youth.
(15) Protection from Undue Restraints The State shall develop and implement policies, procedures and practices so that only safe methods of restraint are used at the facility, and only in those circumstances necessary for safety and security, or with respect to therapeutic restraints pursuant to a medical order to protect the health of the youth.
(16) Use of Force The State shall develop and implement comprehensive policies, procedures and practices governing use of force, so that the least amount of force necessary for the safety of staff, youth, and visitors is used on youth, and that staff adequately and promptly document and report all uses of force by staff.
(17) Reporting of Staff Misconduct and Other Serious Incidents The State shall develop and implement appropriate policies and procedures which contain definitions approved by the Monitor after review and comment by the DOJ for the terms “use of force,” “staff-on-youth violence,” “youth-on-youth violence,” “inappropriate staff relationships with youth,” “sexual misconduct between youth,” and “abusive institutional practices,” and will develop and implement such policies, procedures, and practices so that:
(a) appropriate HYCF staff report all incidents of use of force, staff-on-youth and youth-on-youth violence, inappropriate staff relationships with youth, sexual misconduct between youth, and abusive institutional practices (such as unwarranted use of isolation or restraint or denial of education or medical care) to appropriate individuals at the facility;
(b) appropriate HYCF staff call and document in writing to the Office of Youth Services to report all serious incidents of uses of force, staff-on-youth and youth-on-youth violence, inappropriate staff
12


relationships with youth, sexual misconduct between youth, and abusive institutional practices, and document the call and written correspondence in the youth’s medical or case file;
(c) such reporting may be done without fear of retaliation; and
(d) all such incidents are appropriately documented and reported, including the facts of the incident, any injury that occurred as a result of the incident, and in a way that permits review.
(18) Review of Incidents by Senior Management The State shall develop and implement policies, procedures, and practices so that senior management review all incidents of use of force, staff-on-youth and youth-on-youth violence, inappropriate staff relationships with youth, sexual misconduct between youth, and abusive institutional practices.
(19) Investigations The State shall develop and implement policies, procedures, and practices so that senior management initiate investigations of all incidents of use of force, staff-on-youth violence, serious youth-on-youth violence, inappropriate staff relationships with youth, sexual misconduct between youth, and abusive institutional practices. Investigations shall be conducted by persons who do not have direct or immediate indirect responsibility for the conduct being investigated.
(20) Documentation and Tracking of Investigations The State shall develop policies, practices, and procedures for documenting all incidents of use of force, staff-on-youth violence, youth-on-youth violence, inappropriate staff relationships with youth, sexual misconduct between youth, and abusive institutional practices, and for documenting and tracking the status and outcome of all investigations. Where there is evidence of staff misconduct, the State shall initiate appropriate personnel actions and systemic remedies, where appropriate.
(21) Reporting Possible Criminal Violations The State shall develop policies, practices, and procedures to define those circumstances in which staff must report possible criminal violations to the police, the prosecuting attorney, or the Attorney General.
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(22) Health Care Inquiries Regarding Injury A nurse or other health care provider shall question, outside the hearing of other staff or youth (unless the facility administrator determines that the youth cannot be left alone with the health care provider), each youth who reports to the medical unit with an injury, regarding the cause of the injury. If, in the course of the youth’s medical unit visit, a health care provider suspects staff-on-youth abuse, that health care provider shall immediately:
(a) take all appropriate steps to preserve evidence of the injury (e.g., photograph the injury and any other physical evidence);
(b) report the suspected abuse to the appropriate local officials;
(c) appropriately document the matter in the youth’s medical record; and
(d) complete an incident report.
(23) Isolation The State shall develop and implement policies, procedures and practices so that staff use isolation (as defined in this Agreement) only in accordance with policy and in an appropriate manner, and so that staff document fully the use and administrative review of any imposition of isolation, including the placing of youth in their cells outside normal sleeping hours.
(24) Due Process The State shall provide youth confined for disciplinary reasons for more than 24 hours with an appropriate due process hearing by an impartial supervisory staff member to determine whether the cause exists for continued disciplinary confinement and appropriate representation at such hearing. The State shall give youth a copy of rule violation charges and the hearing record for review (including the incident report and witness statements), and shall document that youth were: (a) given the opportunity to ask that witnesses be interviewed, and (b) were provided with accommodation where the youth has disabilities that might interfere with his or her capacity to understand the process or outcome. The State shall adequately document any such due process hearings, including the result of the hearing and justification for the result.
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(25) Staffing The State shall provide sufficient numbers of adequately trained direct care and supervisory staff to (a) supervise youth safely, (b) protect youth from harm, (c) allow youth reasonable access to medical and mental health services, and (d) provide youth with adequate time spent in out-of-cell activities. In furtherance of this requirement, the State shall submit a proposed staffing plan to be approved by the Monitor, with the Monitor’s approval establishing the sufficient number of staff required by this Agreement. Prior to approval by the Monitor, DOJ may submit comments to the Monitor regarding the State’s staffing plan, which comments shall also be provided to the State. The State shall establish mandatory minimum staffing requirements, including a determination of all direct supervision posts that must be filled on each shift. In establishing mandatory post coverage, the State shall include provisions for coverage for all required staff training as well as authorized leave time. The State shall also document daily shift coverages and shall report to the Office of Youth Services, Department of Human Services, and to the Monitor, all instances of failure to provide the minimum post coverage and the closing of a post due to lack of direct care staff. The State shall regularly report to the Office of Youth Services, Department of Human Services, and to the Monitor, the status of all current vacancies.
(26) Employment Practices The State shall only employ individuals with reputable and responsible characters to work with youth residents at the facility. Within 120 days of the Effective Date of this Agreement, the State shall conduct a criminal record check for all current employees at HYCF, in accordance with Hawaii Revised Statutes section 352-5.5 (2006), taking appropriate actions where new information is obtained. At least as often as every year thereafter, the State shall update such criminal record checks for all employees who come into contact with youth. HYCF administration shall develop policies and procedures so that applicants and all current staff are required to immediately report to it any arrest other than a minor traffic violation and also report the issuance of a restraining order entered against the staff member due to alleged abusive behavior.
(27) Exploitation The State shall develop and implement policies, procedures, and practices so that staff do not
15


financially exploit youth or their families.
(28) Grievances The State shall develop and implement policies, procedures, and practices so that the HYCF has an appropriate grievance system for youth.
(29) Retaliation and Intimidation The State shall develop and implement policies, procedures, and practices so that staff do not intimidate or retaliate against youth who file grievances or against staff members, volunteers, contractual employees, or youth families who report allegations of staff abuse or misconduct. The policies, procedures, and practices contemplated by this paragraph will not preclude appropriate action where a youth, employee, or other person knowingly asserts a false complaint or grievance. As to retaliation against staff members, the policies and procedures contemplated by this paragraph may reference Hawaii Revised Statutes, Chapter 378, Part V (Whistleblowers’ Protection Act).
(30) Admissions Intake and Orientation The State shall develop and implement policies, procedures and practices to establish a consistent, orderly admissions intake system, conducive to gathering necessary information about youth, disseminating information to staff providing services and care for youth, and maintaining their safety. Each youth entering the facility shall receive an orientation that shall include simple directions for reporting abuse, and assure youth of their right to be protected from harm and from retaliation for reporting allegations of abuse. Orientation shall also clearly set forth the rules youth must follow at the facility, explain how to access medical and mental health care and the grievance system, and provide other information pertinent to the youth’s participation in facility programs.
(31) Classification The State shall develop and implement a classification system that, upon intake, places youth appropriately and safely within the facility, and provides for later reclassification in appropriate circumstances.
B. TRAINING
(32) Training The State shall develop and implement policies, procedures, and practices to provide staff, volunteers and contractual employees of HYCF, and OYS employees as deemed
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appropriate by OYS, with training regarding their responsibilities. These policies, procedures and practices shall include:
(a) a comprehensive training plan for all HYCF employees and appropriate OYS employees, reviewed and updated annually;
(b) requirements by job category;
(c) standards for qualification of trainers;
(d) processes for approval of the training curriculum;
(e) schedules for staff training;
(f) criteria for determining that staff volunteers and contractual employees have mastered the instructional materials and methods being taught; and
(g) specific requirements by professional discipline for any continuing education credits established by licensure, certification, or recognized professional academies and organizations.
(33) Use of Force Training The State shall train direct care staff in the approved method for physical restraint that minimizes the risk of injury to youth. The State shall only use instructors that are appropriately certified to teach the approved physical restraint method. All training shall include each staff’s demonstration of the approved techniques and meet the minimum standards for competency established by the method. Direct care staff skills in employing the method shall be periodically re-evaluated. Staff who demonstrate deficiencies in technique or method shall be re-trained at least every six months until they meet minimum standards for competency established by the method. Supervisory staff who are routinely involved in responding to incidents and altercations shall be trained to evaluate their subordinates’ use of the approved restraint methods and must provide evaluation of the staff’s proper use of these method(s) in their reports addressing use of force incidents.
(34) Suicide and Self-Harm Prevention Training The State shall conduct suicide prevention training for direct care staff.
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Within six months of the Effective Date of this Agreement, HYCF shall develop a prevention training curriculum, which shall include the following topics:
(a) a suicide prevention policy consistent with this Agreement;
(b) the ways in which facility environments may contribute to suicidal behavior;
(c) potential predisposing factors to suicide;
(d) high risk suicide periods;
(e) warning signs and symptoms of suicidal behavior;
(f) case studies of recent suicides and serious suicide attempts;
(g) the proper role of staff in responding to a suicide attempt by youth, including different levels of observation and the types of precautions that should be taken;
(h) strategies for de-escalating youth engaging in selfharming behaviors;
(i) instruction and mock demonstrations regarding the proper response to a suicide attempt; and
(j) the proper use of emergency equipment.
(35) Staff Training in Behavior Management, De-Escalation and Crisis Intervention The State shall provide appropriate competency-based training to staff in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention before staff may work in direct contact with youth.
(36) Staff Training in Incident Reporting The State shall develop and implement policies, procedures, and practices so that staff are appropriately trained in incident reporting consistent with the type of incident reporting required under this Agreement.
(37) Behavior Management Program The State shall develop and
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implement a behavior management program. The program shall provide youth with positive and systematic recognition and rewards for accomplishments and shall teach social and cognitive skills, reinforce appropriate choices, and assist youth in establishing understandable and reachable goals. The program shall also provide that mental health staff (a) consult custody and other direct care custody staff regarding behavior management, and (b) assess the effectiveness of such program and any interventions utilized. HYCF administration shall incorporate means to assess and refine the program based on mental health staff assessment of outcomes and shall share results with program units.
C. ACCESS TO MEDICAL AND MENTAL HEALTH CARE
(38) Access to Care The State shall provide youth with access to adequate, appropriate, and timely medical and mental health care to meet the individualized needs of youth in accordance with clinical judgment.
(39) Policies, Procedures and Protocols The State shall develop and implement adequate medical and mental health policies, procedures and protocols as set forth in this Agreement. The State shall provide sufficient numbers of qualified medical professionals to meet these needs. In furtherance of this requirement, the State shall submit a proposed staffing plan to be approved by the Monitor, with the Monitor’s approval establishing the sufficient number of staff required by this Agreement. Prior to approval by the Monitor, DOJ may submit comments to the Monitor regarding the State’s staffing plan, which comments shall also be provided to the State. The State shall also provide that direct care staff do not restrict or deny the provision of adequate medical and mental health care.
(40) Privacy Subject to safety considerations, the State shall provide for an appropriately private environment in which to conduct medical and mental health assessments at HYCF.
(41) Mental Health and Medical Records Retrieval The State, through appropriate HYCF and OYS staff, shall develop and implement policies, procedures and practices so that, consistent with State and Federal law, all reasonable efforts are made to have the juvenile courts in the State, all juvenile detention facilities, and all placement
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settings from which youth are committed, timely forward all pertinent youth records or discharge summaries regarding medical and mental health care, in accordance with the clinical judgment of the qualified medical professional or qualified mental health professional.
(42) Interdisciplinary Communication The State shall develop and implement policies, procedures and practices so that interdisciplinary communication occurs to facilitate mental health treatment among medical and mental health staff and outside providers of medical and mental health services.
(43) Mental Health and Medical Record System The State shall develop and implement policies, procedures and practices so that medical and mental care staff have reasonable access to all documents that are relevant to the care and treatment of the youth.
D. SPECIAL EDUCATION
(44) Provision of Special Education The State shall provide youth confined at the facility with special education in compliance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., and regulations promulgated thereunder. The State understands that providing appropriate special education services includes having staff sufficient to transport and, if necessary, appropriately supervise youth during the provision of special education services.
(45) Documentation The State shall adequately document any lapse in the provision of special education, including the number of youth who were denied access to special education, the date, time, periods missed, and reason for the lapse. The State shall submit such documentation to the facility director for prompt action to try to cure and prevent recurrence of such denial.
(46) Timeliness in Providing Special Education Youth who qualify for special education services shall receive such services within a reasonable time following intake at the facility.
(47) Vocational Education The State shall develop and implement appropriate vocational education services for youth with disabilities.
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(48) Section 504 Plans The State shall develop and implement policies, procedures and practices to provide that Section 504 plans are developed and implemented for eligible youth.
(49) Parent, Guardian and Surrogate Involvement The State shall develop and implement policies, procedures and practices to appropriately notify and involve parents, guardians or surrogate parents in the provision of special education services, whenever possible.
V. COMPLIANCE AND QUALITY IMPROVEMENT
(50) Document Development and Revision The State shall revise and/or develop policies, procedures, protocols, training curricula, and practices so that they are consistent with, incorporate, address, implement, document, and assess all provisions of this Agreement. The State shall revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, and internal audit or quality improvement methods to effectuate the provisions of this Agreement and report the outcomes, findings, and corrective action plans.
(51) Document Review The State shall draft policies and procedures in conjunction with comments and discussions with the DOJ and the Monitor, and will send newly-drafted and revised policies and procedures to the DOJ and the Monitor for review and approval as they are promulgated. The State shall provide initial and refresher training to all facility staff with respect to newly-implemented or revised policies and procedures. The State shall document employee review and training in policies and procedures.
(52) Quality Improvement Programs The State shall develop and implement a Quality Improvement Program for HYCF.
(53) Corrective Action Plans The State shall develop and implement policies and procedures to address problems that are addressed in this Agreement or uncovered during the course of quality improvement activities. The State shall develop, implement, and document corrective action plans to address these problems in such a manner as to prevent them from occurring again in the future, and shall report such plans to the Office of Youth Services, Department of Human Services.
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(54) Technical Assistance by DOJ In the first instance, the State shall request technical assistance from the Monitor. DOJ will thereafter provide the State with technical assistance as requested by the State, including assistance in the formulation and development of policies and procedures, documentation, and quality improvement methods that are required to monitor and effectuate the terms of this Agreement. DOJ will assist the State in identifying additional financial or technical resources to supplement those resources currently allocated to the facilities. When the State seeks assistance from DOJ, the scope of DOJ’s review shall be limited to the area in which the State requested assistance.
VI. MONITORING AND ENFORCEMENT
(55) Monitor Selection The parties have jointly selected Russell Van Vleet to serve as the monitor (“Monitor”). Should the position become vacant and the parties cannot agree on a replacement, the parties shall recommend candidates to the Court, and the Court will select the Monitor. Neither party, nor any employee or agent of either party, shall have any supervisory authority over the Monitor’s activities, reports, findings, or recommendations. The cost for the Monitor’s fees and expenses shall be borne by the State. The State will apply to the Chief Procurement Officer for an exemption from the state procurement code to retain the Monitor. The Monitor may be terminated only for good cause, unrelated to the Monitor’s findings or recommendations, and only with prior notice to and approval of both parties or by Court order.
(56) Monitor Qualifications The Monitor shall have experience and education or training in the field of juvenile justice. The Monitor also may have education, training, or experience in general or special education, adolescent health and mental health needs (particularly the needs of institutionalized adolescents), and institutional abuse and incident investigations.
(57) Monitor Access The Monitor shall have full and complete access to the facilities, all facility and OYS records, staff, and residents. The State shall direct all employees to cooperate fully with the Monitor. All non-public information obtained by the Monitor shall be maintained in a confidential manner.
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(58) Monitor Ex Parte Communications The Monitor shall be permitted to initiate and receive ex parte communications with all parties.
(59) Limitations on Public Disclosures by Monitor Except as required or authorized by the terms of this Agreement or the parties acting together, the Monitor shall not: make any public statements (at a conference or otherwise); issue findings with regard to any act or omission of the State or its agents, representatives or employees; or disclose nonpublic information provided to the Monitor pursuant to this Agreement. Any press statement made by the Monitor regarding his employment must first be approved by the parties. Other than this lawsuit as between the United States and the State, the Monitor shall not testify in any litigation or proceeding with regard to any act or omission of the State, OYS or any of their agents, representatives, or employees, nor testify regarding any matter or subject that he or she may have learned as a result of his or her performance under this Agreement. In this lawsuit as between the United States and the State, either party may call the Monitor as a witness. Neither party will call the Monitor as their own expert or designate the Monitor as their own expert pursuant to the federal rules of civil procedure. The scope and purpose of the Monitor’s testimony shall be left to the discretion of the Court. Other than this lawsuit as between the United States and the State, reports issued by the Monitor shall not be admissible against the State in any proceeding for any reason. In this lawsuit as between the United States and the State, the admissibility into evidence of the Monitor’s reports, or portions thereof, shall be governed by the federal rules of evidence, and the parties reserve all rights to either seek admissibility or object to admissibility of those reports. The Monitor is not a state or local agency or an agent thereof, and accordingly the records maintained by the Monitor shall not be deemed public records subject to public inspection. In the event of a proceeding before a court, in which the court needs to determine whether or not the Monitor has performed any contracts or subcontracts for monitoring this Agreement, such testimony as is necessary for the determination of such issue(s) may be allowed, in the discretion of the court, notwithstanding this paragraph.
(60) Limitations on Other Employment by the Monitor Unless such
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conflict is waived by the parties, the Monitor shall not accept employment or provide consulting services that would present a conflict of interest with the Monitor’s responsibilities under this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with a claim or suit against the State or its departments, officers, agents or employees.
(61) Limitations on Monitor’s Liability Other than a proceeding regarding whether or not the Monitor has performed any contracts or subcontracts for monitoring this Agreement, neither the Monitor nor any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this Agreement shall be liable for any claim, lawsuit or demand arising out of the Monitor’s performance pursuant to this Agreement.
(62) Monitor Reports The Monitor shall provide the parties with reports describing the steps taken by the State to implement this Agreement and evaluate the extent to which the State has complied with each substantive provision of the Agreement. The Monitor shall issue reports every four (4) months, unless the parties agree otherwise. The Monitor shall provide reports to the parties in draft form for comment at least two weeks prior to their issuance. These reports shall be written with due regard for the privacy interests of individual youth and staff and the interest of the State in protecting against disclosure of non-public information. The Monitor’s reports, which shall not be filed with the Court, may be made public by the Monitor or by the State or United States. The Monitor may keep confidential any personally-identifiable information, or any information in the interest of privacy or public safety.
(63) Monitor Budget The State shall provide the Monitor with a budget to be set forth in an agreement with the Monitor. The Monitor may consult experts or consultants retained by either party. All parties shall receive copies of all draft reports from experts to the Monitor prior to the issuance of any Monitor’s report, and shall have the option of being present at briefings from such experts to the Monitor and to the State. The Monitor may initiate and receive ex parte communications with the parties and with the parties’ consultants.
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(64) Technical Assistance by the Monitor The Monitor shall provide the State with technical assistance as requested by the State.
VII. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
(65) DOJ Access The DOJ shall have full and complete access to the youth at the facilities. The DOJ shall have full and complete access to the facilities, youth records, staff records, and staff of the facilities regarding the topics addressed in this Agreement. The DOJ shall have the right to conduct unannounced visits to the facilities, provided that the Special Litigation Section will notify the State in the event that the United States Attorney’s Office for the District of Hawai’i accesses youth or records at the facility. The DOJ shall have the right to conduct interviews with staff, and confidential interviews with residents and former residents. State attorneys may be present at interviews of staff and tours of facilities. All non-public information obtained by the DOJ shall be maintained in a confidential manner.
(66) State Response to DOJ Questions The State shall respond to written questions from the DOJ within 30 days of receipt. The State shall provide the DOJ with written answers and access to any requested documents regarding the State’s compliance with the requirements of this Agreement. Any dispute regarding the scope or burden of the requests shall be resolved by the Monitor.
(67) State Documentation of Compliance The State shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. The State shall also maintain (so long as this Agreement remains in effect) any and all records required by or developed under this Agreement.
(68) State Compliance Reports Thirty (30) calendar days before each report from the Monitor is due, the State shall provide the Monitor and the United States with a status report regarding its compliance with this Agreement.
(69) Privileges This Agreement shall not be deemed to waive the attorney/client, attorney work product, deliberative process, victim/counselor, or executive privileges. The
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State shall not assert physician/patient or psychotherapist/patient privileges with respect to the monitoring of this Agreement.
VIII. IMPLEMENTATION AND TERMINATION
(70) Information to Employees The State shall provide that all current and future relevant State employees understand the terms of this Agreement (to the extent necessary to carry out their job duties and responsibilities) and implement the terms of this Agreement.
(71) Implementation The State shall implement all reforms necessary to effectuate this Agreement. The State will begin implementation immediately upon the Effective Date of this Agreement. Minor, inconsequential, sporadic, unintentional or isolated harmless instances of noncompliance with the Agreement shall not be a basis for enforcement, provided they do not affect a substantial interest of the youth.
(72) Integration This Agreement shall constitute the entire integrated Agreement of the parties. With the exception of DOJ’s findings letter dated August 4, 2005 related to HYCF, no prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein.
(73) Enforcement If DOJ believes that the State has failed to substantially comply with any obligation under this Agreement, DOJ will give the State written notice of the State’s failure prior to reinstating the lawsuit. The parties shall conduct good-faith discussions to resolve the dispute. The parties shall attempt in good faith to mediate the dispute with the Monitor for a minimum of 30 days prior to DOJ seeking the reinstatement of the civil proceeding that this Agreement settled. The terms of this Agreement are not subject to State or federal court enforcement other than the reinstatement of the Complaint that this Agreement settled. DOJ shall have no remedy or action available for the State’s alleged breach of this Agreement other than the reinstatement of the Complaint that this Agreement settled. DOJ commits to work in good faith with the State to avoid enforcement actions. However, in case of an emergency posing an immediate threat to the health or safety of youth, the United States may omit the notice and cure requirements
26


herein, including the provision regarding remediation, before seeking reinstatement.
(74) Agreement Coordinator The State shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement.
(75) Termination This Agreement shall terminate three years from the Effective Date of the Agreement. The Agreement may also end earlier than three years from the Effective Date of the Agreement if the State has substantially complied with each of the provisions of the Agreement and has maintained substantial compliance for at least two years. If the DOJ agrees that the State has maintained such compliance, the parties shall file a joint stipulation to dismiss with prejudice. If DOJ does not agree that the State has maintained such compliance, the burden shall be on the State to demonstrate this level of compliance. There are four substantive sections of this Agreement – protection from harm, training, access to medical and mental health care, and special education. A section of the Agreement may be terminated if the State sustains its burden with respect to that section of the Agreement. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
(76) Defense of Agreement The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court shall be sought.
(77) Successors This Agreement shall be binding on all successors, assignees, employees, agents and all those working for or on behalf of the State.
(78) No Waiver for Failure to Enforce Failure by either party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines or provisions of this Agreement.
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(79) Notice “Notice” under this Agreement shall be provided by courier or overnight delivery and shall be provided to the Governor of the State and to the Attorney General of the State.
(80) Unforeseen Delay If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the State shall notify the DOJ in writing within 20 calendar days of the time that the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure.
(81) Non-Retaliation The State agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided information or assistance, or participated in any other manner in an investigation or proceeding relating to this Agreement. The State is not precluded from taking appropriate action where an individual knowingly asserts a false complaint or makes knowingly false statements.
(82) Subheadings All subheadings in this Agreement are written for convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
(83) Severability In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
(84) Attorney’s Fees and Expenses Each party shall bear the cost of their fees and expenses incurred in connection with this cause.
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/s/ Edward H. Kubo, Jr.
EDWARD H. KUBO, JR. United States Attorney District of Hawai’i

FOR THE UNITED STATES:

/s/ Wan J. Kim
WAN J. KIM Assistant Attorney General Civil Rights Division

/s/ Harry Yee
HARRY YEE Assistant United States Attorney District of Hawai’i

/s/ Bradley J. Schlozman
BRADLEY J. SCHLOZMAN Principal Deputy Assistant Attorney General

/s/ Shanetta Y. Cutlar
SHANETTA Y. CUTLAR Chief Special Litigation Section
/s/ Judy Preston
JUDY PRESTON Deputy Chief Special Litigation Section
/s/ Sarah Gerhart
SARAH GERHART LASHANDA BRANCH CHIRUNGA Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

29


Date: February 7, 2006

FOR THE STATE:

/s/ Linda Lingle
LINDA LINGLE Governor State of Hawai’i
/s/ Mark J. Bennett
MARK J. BENNETT Attorney General State of Hawai’i
/s/ Lillian B. Koller
LILLIAN B. KOLLER Director Department of Human Services
/s/ Sharon Agnew
SHARON AGNEW Executive Director Office of Youth Services
/s/ Patricia Hamamoto
PATRICIA HAMAMOTO Superintendent Hawai’i Department of Education

30

 
 Case: 1:06-cv-73 As of: 08/02/2013 11:56 AM HST 1 of 4
U.S. District Court District of Hawaii (Hawaii) CIVIL DOCKET FOR CASE #: 1:06−cv−00073−JMS−LK

CLOSED

United States of America v. State of Hawaii, The et al Assigned to: JUDGE J. MICHAEL SEABRIGHT Referred to: JUDGE LESLIE E xKOBAYASHI Cause: 20:1401 Education: Handicapped Child Act
Plaintiff

Date Filed: 02/07/2006 Date Terminated: 04/27/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Harry Yee Office of the United States Attorney Prince Kuhio Federal Building 300 Ala Moana Blvd Ste 6100 Honolulu, HI 96850 541−2850 Email: harry.yee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lashanda Branch Chirunga U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−353−2234 Fax: 202−514−0212 Email: lashanda.branch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura L. Coon U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 514−1089 Email: Laura.Coon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah H. Gerhart U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−353−1584 Fax: 202−514−0212 Email: sarah.gerhart@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant State of Hawaii, The

represented by Lisa M. Ginoza Office of the Attorney General−State of Hawaii Kekuanao'a Building

Case: 1:06-cv-73 As of: 08/02/2013 11:56 AM HST 2 of 4

465 S King St Rm 200 Honolulu, HI 96813 587−3050 Email: lisa.m.ginoza@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Bennett Office of the Attorney General−Hawaii 425 Queen St Honolulu, HI 96813 586−1500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Linda Lingle Governor of Hawaii

represented by Lisa M. Ginoza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lillian B. Koller Director of The Hawaii Departmen of Human Services

represented by Lisa M. Ginoza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sharon Agnew Director of the Office of Youth Services

represented by Lisa M. Ginoza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Patricia Hamamoto Superintendent of the Hawaii Department of Education

represented by Lisa M. Ginoza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kaleve Tufono−Iosefa Administrator of the Hawaii Youth

represented by Lisa M. Ginoza (See above for address)

Case: 1:06-cv-73 As of: 08/02/2013 11:56 AM HST 3 of 4

Correctional Facility

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark J. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/07/2006 02/07/2006 02/07/2006 02/08/2006 02/08/2006 02/09/2006
02/09/2006 02/09/2006
02/09/2006
02/14/2006 03/01/2006
03/01/2006

# Docket Text
1 COMPLAINT; summons against State of Hawaii, The, Linda Lingle, Lillian B. Koller, Sharon Agnew, Patricia Hamamoto, Kaleve Tufono−Iosefa (Filing fee $ 250−waived), filed by United States of America.(bbb, ) Additional attachment(s) added on 2/7/2006 (bbb, ). (Entered: 02/07/2006)
2 Order Setting Rule 16 Scheduling Conference for 09:00AM on 5/8/2006 before JUDGE LESLIE E KOBAYASHI. (bbb, ) (Entered: 02/07/2006)
3 MOTION to Dismiss Joint Motion for Conditional Dismissal Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure; Exhibit "A" by United States of America. (Attachments: # 1 Exhibit A)(Yee, Harry) (Entered: 02/07/2006)
4 NOTICE of Hearing on Motion− 3 MOTION to Dismiss Joint Motion for Conditional Dismissal Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure set for hearing on 4/12/2006 10:00 AM before JUDGE SAMUEL P KING. (lls, ) (Entered: 02/08/2006)
5 NOTICE of Hearing on Motion 3 −MOTION to Dismiss Joint Motion for Conditional Dismissal Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure set for hearing 2/9/2006 10:00 AM before JUDGE SAMUEL P KING. (lls, ) (Entered: 02/08/2006)
6 EP:Motion Hearing held on 2/9/2006 Re 3 MOTION to Dismiss Joint Motion for Conditional Dismissal Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure filed by United States of America−Motion is Granted. Court to prepare the Order.(Plaintiff's Counsel−Judy Preston−By Phone and Harry Yee−present and Defendants' Counsel−Mark Bennett and Lisa Ginoza−present) (Court Reporter Debra Chun.) (Judge SAMUEL P KING )(lls, ) (Entered: 02/09/2006)
7 ORDER granting 3 JOINT MOTION for conditional Dismissal. Signed by Judge SAMUEL P KING on 02/09/2006. (bbb, ) (Entered: 02/09/2006)
COURT'S CERTIFICATE of Service − a copy of 7 Order has been served by First Class Mail to the addresses of record on Hand Delivered to: Lashanda Branch Chirunga and Sarah H. Gerhart. Registered Participants of CM/ECF received the document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). (bbb, ) (Entered: 02/09/2006)
COURT'S CERTIFICATE of Service − a copy of 7 Order has been served by First Class Mail to the addresses of record to: Mark J. Bennett, Esq. and Lisa Ginoza, Esq.. Registered Participants of CM/ECF received the document electronically at the e−mail address listed on the Notice of Electronic Filing (NEF). (bbb, ) (Entered: 02/10/2006)
8 TRANSCRIPT of Proceedings Status Conference regarding Conditional Dismissal held on 2/9/2006 before Judge Samuel P. King. Court Reporter: Debra Chun. (dc@hid.uscourts.gov) (Entered: 02/14/2006)
9 ORDER REASSIGNING CASE. Case reassigned to Judge J. MICHAEL SEABRIGHT for all further proceedings. Judge SAMUEL P KING no longer assigned to case. All further proceedings should reflect case # CV 06−00073JMS−LEK. Signed by Judge HELEN GILLMOR on 02/28/2006. (bbb, ) (Entered: 03/01/2006)
COURT'S CERTIFICATE of Service − a copy of 9 "Order Reassigning Case" has been served by First Class Mail to the addresses of record on 03/01/2006. Registered Participants of CM/ECF received the document electronically at the

Case: 1:06-cv-73 As of: 08/02/2013 11:56 AM HST 4 of 4

12/09/2008 12/11/2008

e−mail address listed on the Notice of Electronic Filing (NEF). (cc: SPK, JMS, LEK, LS, DM, WN). (bbb, ) (Entered: 03/01/2006)
10 NOTICE of Appearance by Laura L. Coon on behalf of United States of America on behalf of United States of America. (Coon, Laura) (Entered: 12/09/2008)
11 NOTICE by United States of America re 7 Order, 1 Complaint, Extension of Settlement Agreement United States of America. (Coon, Laura) (Entered: 12/11/2008)