IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

UNITED STATES OF AMERICA,

Plaintiff,

v.

i

1

COMMONWEALTH OF VIRGINIA;

1

GEORGE ALLEN, Governor of the

1

Commonwealth of Virginia; ROBERT )

METCALF, Acting Secretary,

1

Department of Health and Human

Resources; DR. TIMOTHY KELLY,

1

Commissioner, Department of Mental )

Health, Mental Retardation and

1

Substance Abuse Services;

JANET HILL, Director, Office of 1

Mental Retardation, DMHMRSAS;

1

DAVID H. LAWSON, Director,

1

Northern Virginia Training Center, )

Defendants.

1

Civil Action No. 96-283-A

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NOTICE OF ENTRY OF APPEARANCE

PLEASE TAKE NOTICE that in the above-captioned case, Richard -4-
Parker, Assistant United States Attorney, has entered his appearance for the Plaintiff, United States of America,.II.

AND HEREBY REQUESTS copies of all pleadings in this case be

sent to:

Richard Parker Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314-579

Respectfully submit

HELEN F. FAHEY

By: Richard Parker Assistant United States Attorney Appearing pursuant to 28 U.S.C. § 5177 2100 Jamieson Avenue Alexandria, Virginia 22314 Telephone: (703) 299-3742

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I caused a true and correct copy of the foregoing Notice of Entry of Appearance, to be sent by Federal Express, postage prepaid, on this 5th day of March, 1996, to:
William H. Hurd Deputy Attorney General Commonwealth of Virginia 900 East Main Street Richmond, VA '23219
Richard Parker Assistant U.S. Attorney

IN THE UNITED STATES DISTRICT COURT..,

ALEXANDRIA DIVISIO

. . . , -,, !
!

Plaintiff,

i

.

v.

COMMONWEALTH OF VIRGINIA;

GEORGE ALLEN, Governor of

)

the Commonwealth of Virginia;

ROBERT METCALF, Acting &c.retary, . ' ) :.

". ' ~ewartmentof :Health and, . ~ u i a nResources; DR: TIMOTHY

i .' . ) :

KELLY, Commissioner, Department of )

Mental Health, Mental Retardation )

and Substance Abuse Services;

DR. RUSSELL PERELLA, Director,

1

Office of Mental Health Services; 3 ,

JOHN M. FAVRET, Director,

1

Eastern State Hospital,

1

Defendants.

1

civil ~ctionNO. 4 6 - J & ( / ~

.. COMPLA.INT. . . .
Civil Rights .

. ... .

THE UNITED STATES OF AMERICA alleges: 1. This action is brought by the Attorney General, on
behalf of the United States, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 5 1997 & sea., to enjoin the named Defendants from depriving persons residing at the Eastern State Hospital, including the Hancock Geriatric Center, (hereinafter "ESH"),in Williamsburg, Virginia, of their rights, privileges and immunities secured and protected by the laws and Constitution of the United States.

The purpose of this lawsuit is to ensure that each ESH

patient receives adequate care and treatment, including medical

and psychiatric services, and is otherwise protected from harm.

In addition, the United States seeks to ensure that each patient

is evaluated to determine appropriateness of placement at ESH and

to ensure that services are being provided in the most integrated,

least separate setting necessary to meet each patient's individual

needs, and for those patients professionals hav; determined are in

need of placement in alternate community-based programs, that those

judgments are implemented in a reasonable manner. It is not the goal

. of. .this case t'oclose.the.facility.
. .
JIJRISDICTION. STANDING AND'VENUE.

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2 . This Court has jurisdiction over this action pursuant

to 2 8 U.S.C. § 1345.
. 3 "
3. The United States has standing to maintain this action

pursuant to 4 2 U.S.C. § 1997a.

".%

4. The Attorney General has certified that all prefiling

requirements specified in 4 2 U.S.C. § 1997b have been met. The

Certificate of the Attorney General is appended to this Complaint

and is incorporated herein.

5. Venue in the Eastern District of Virginia is proper

pursuant to 2 8 U.S.C. § 1391. All claims set forth in the

Complaint arose in said District.

DEFENDANTS

6. Defendant COMMONWEALTH OF VIRGINIA owns and operates

ESH, which is a state mental health facility located in

Williamsburg, Virginia, and includes the Hancock Geriatric

Center.

7. Defendant GEORGE ALLEN is the Governor of Virginia and,

in this capacity, heads the Executive Branch of the

Commonwealthlsgovernment and, among other duties, reviews and

approves budget requests submitted by Executive Branch agencies.

He selects and appoints the Secretary of the Department of Health

and Human Resources ("DHHRW).

b

8. Defendant ROBERT METCALF is the Acting Secretary of the

Department of Health and Human Resources and, in this capacity,
. . .. exerc. i.. s.e. s a.d.ministrative control of ,;and .:responsibility.for,. ESH-.
9. Defendant DR. TIMOTHY KELLY is the Commissioner of the

Department of Mental Health, Mental Retardation and Substance

Abuse Services ( "DMHMRSAS") and, in this capacity, exercises
- .J
administrative control of, and responsibility for, ESH.

10. Defendant DR. RUSSELL PERELLA is the Director'of the

Office of Mental Health Services, who, along with Defendants

METCALF and KELLY, is responsible for the administration of ESH.

11. Defendant JOHN M. FAVRET is Director of ESH and is

responsible for the day-to-day operations of ESH.

12. The individual Defendants named in paragraphs 7, 8, 9,

10 and 11 above are officers of the Executive Branch of the

Commonwealth of Virginia and are sued in their official

capacities.

13. ESH is an institution within the meaning of 42 U.S.C.

5 1997 (1).

14. Persons residing at ESH are individuals with special

needs, including those with mental illness, mental retardation or

other developmental disabilities, and the elderly. Persons

residing at ESH are I1qualifiedindivid'ual[s] with a disabilityu

pursuant to the Americans with Disabilities Act of 1990 (llADA1l),

42 U.S.C. § § 12101, 12131.

15. The Commonwealth of Virginia, the Department of Health

and Human Resources, DMHMRSAS, and ESH are

entitiesf1

pursuant to Title I1 of the ADA, 42 U.S.C. § 12131.

16. Defendants are legally responsible, in whole or in
. pa.r' t ,: for, t.he op. e. ra.t.-'ion.of,and conditions.at ES< 'as.'wellas 'fpr . .
the care and treatment of persons residing at that institution. .

17. At all relevant times, Defendants have acted or failed

to act, as alleged herein, under color of state law.
4 . '.
FACTUAL ALLEGATIONS

18. Defendants have failed and are continuing to.-failto

provide patients residing at ESH with that level of treatment and

training necessary to protect the liberty interests of patients,

including their right to treatment and training sufficient to

ensure safety and freedom from undue restraint.

19. Defendants have failed to evaluate or assess,

consistent with accepted professional standards, each patient

confined to ESH and to develop for each patient an appropriate,

accurate diagnosis.

20. Defendants have failed and are continuing to fail to
i
ensure that medications are prescribed and administered to ESH

patients by appropriately qualified professionals in keeping with

accepted professional standards and to ensure that drug regimens

do not harm patients and are not used as punishment, in lieu of

treatment, or for the convenience of staff.

21. Defendants have failed and are continuing to fail to

ensure that there is an adequate number of sufficiently trained

staff, at all levels of ESH operation, to render and implement

adequate care and treatment of ESH patients and'to ensure

reasonable safety and freedom from undue physical restraint.

22. Defendants have failed and are continuing to fail to

. .
.

.
.

.. .p.r. .&vide. a.de. qu.ate..

m'...e.dic.a. l

car. e. ,. .

5nclud. .i.n.g. .
.....

.nursing
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.seyices..,to ......

ESR'

patients by failing,. inter alia, to provide an overal'l- system of

medical care which is sufficient to respond to the medical needs

of all patients in a timely manner.

23. Defendants have failed aGd are continuing to fail to

provide reasonably safe conditions at ESH and to ensure,the

reasonable safety and personal security of ESH patients.

24. Defendants have failed and are continuing to fail to

ensure that ESH patients are free of unreasonable restraints and

that restraints and seclusion are used safely, administered and

supervised by appropriately qualified staff, utilized consistent

with accepted professional standards, and are not used as

punishment, in lieu of treatment, or for the convenience of
staff .

25. Defendants have failed and are continuing to fail to

maintain professionally appropriate recordkeeping and record

review systems to ensure that patient records contain accurate,

up-to-date and relevant information necessary to enable staff to

render adequate care, treatment, and training.

2 6 . Defendants have failed and are continuing to fail to

ensure that ESH patients are adequately evaluated for community

placement, that those patients whom professionafs have determined

should be placed in community programs are placed in such

programs, and that all patients are served in the most integrated

. .
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.
..

. setting
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appropriate

to

each:,patjeqt'8- individual.needs.

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27.. Defendants have failed and .are continuing to fail to

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meet the requirements of the ADA, 42 U.S.C. § 12101 et sea., and

the regulations promulgated pursuant thereto, by excluding ESH
4.'
patients, by reason of their disability, from participation in or

by denying them the benefits of services, programs, ,or.activities

or by subjecting them to discrimination, and by failing to

administer services, programs, and activities in the most

integrated setting appropriate to their needs.

VIOLATIONS ALLEGED

28. The acts and omissions alleged in paragraphs 18 through

2 7 violate the rights, privileges and immunities of ESH patients

secured or protected by the laws and Constitution of the United

States and deprive the ESH patients of such rights, privileges

and immunities.

29. Unless restrained by this Court, Defendants will

continue to engage in the conduct and practices set forth in

paragraphs 18 through 27 that deprive the patients of ESH of

their rights, privileges or immunities secured or protected by

the laws and Constitution of the United States and cause them

irreparable harm.

PRAYER FOR RELIEF

30. The Attorney General is authorized under 42 U.S.C.

5 1997a to seek only equitable relief.

WHEREFORE, the United States prays that this Court enter an

order

permanently
. .

en. jo..in- ing

De$en.dants;their

agents, e m p l ~ y e ~ s. ,
. ..

subordinates, successors in office, and all those acting in

concert or participation with them from continuing the acts,

practices and omissions at ESH set forth in paragraphs 18 through
4.
27 above, and that this C0ur.t require Defendants to take the

necessary actions as to provide ESH patients with theiz.

constitutional and federal statutory rights. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submAtted,

ttorney General of the

HELEN F. FAIIEY

United States ~ t t o r n e y

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.vEasrt,ergnD-ist.r.,ict

of

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+ssistant Attorney General
, Ci. v"i..l .. ..Ri.gh. tsD.iv..is..io.n . .

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ARTHUR E. PEABODY, J w chief Special Litigation Section

7--
ROQINSUE FROHBOESE Deputy Chief Special Litigation Section

lkbk \~LwUh,,

MARK S. MASLING

DAVID DEUTSCH ROBERT J. MOOSSY

\

Attorneys

U.S. Department of Justice

Civil Rights Division

Special Litigation Section

Room 1714

P.O. Box 66400

Washington, D.C..20035-6400

(202) 514-6252

CERTIFICATE OF THE ATTORNEY GENERAL.

I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. Commonwealth of Virqinia, et al., I have complied with all subsections of 42 U.S.C. 8 1997b(a)(1). I certify as well that I have complied with all subsections of 42 U.S.C.
5 1997b(a) (2). I further certify, pursuant to 42 U.S.C.
5 1997b(a)( 3 1 , my belief that this action by the United States i's of general public importance and will materially .further the vindicati'on of rights, privileges, or..immunitiessecured or ' ' .
protected by the Constitution of the United states.

I further certify that I have "reasonable cause to believe" set forth in 42 U.S.C. § 1997a to initiate this action. Finally, I certify that all prerequisites to the initiation of suit under 42 U.S.C. 5 1997 et sea., have bee2.,rnet.

Pursuant to 42 U.S.C. 5 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b.(b), I am
personally signing this Certificate.

Signed this L&?, day of at Washington, D.C.

P ~ .7
- .

H , 1995

J m E T RENO
Attorney General
/of the United States

CIVIL COVER SHEET

The JS44 civil cover he.( md the infomation contained huein mimer r w l r e nor ulpglWImt the fillnp md wnim 01 plecllnpl or 0th.r pg.n a rquirrdby I-. exapt a providd by kJ NIUof caun. This form. w r o v d by me Judicial Conlnence of the Unitd States in S.ptmb.r 1974. is rquired for the uw of the Ctek of Court lor the wrpow of lnitlrti~qthe clvil Met. (SEE INSTRUCTIONSON THE REVERSEOF THE FORM.)

r (a) PLAINTIFFS
United States o f America

DEFENDANTS
Commonwealth o f V i r g i n i a , e t a 1

(b) COUNTY OF RESIDENCE OF FIRST U S E D PLAINTIFF
(EXCEPT IN U.S. PLAINTIFF CASES)

COUNlY O f RESIDENCE OF FIRST U S E D DEFENDANT (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF W D INVOLVED

(c) AlTORNEYS (FIRM NAME. ADDRESS. AND TELEPHONE NUMBER) Richard Parker, AUSA 2100 Jamieson Avenue Alexandria, VA 22314
(703) 706-3742

II. BASIS OF JURISDICTION I- uc M w OM EX olrn

2 1 U.S. Government Pblnlltl

3 Federal Q w t l o n (U.S. Government Not a Party)

2 U.S. Govemmenl , Defendant

4 Dlvudty (Indlcate ClUzenship d Parlies in Item Ill) '
. .

AlTORNEYS (IF KNOWN)

b
Ill. CITIZENSHIP OF PRINCIPAL PARTIES

uc s w or cox

(For Olversily Cases Only)

~RA~~CCANOWEXCORMWD*HT)

C l k e n d Thls State

PTF DEF 01 1

Citizen a( A n o l h r Slate .02 0 2

ClUgn orSub)sct of a M l g n County

03 03

Incorporaledor Rlnclpal PIof B u d m u I n Thls Shte
Inwrpomt.dnd e f p . 1 PI& ot Buallnaa I n AnoIhu Stclt.
Fordgn Nation

PTF OEF
04 04 .
05 05
06 06

IV. CAUSE OF ACTION c n c m c u . r-sm*nmuacRwwocrarraEnumwamm*eAwFsrAnuunw-.

HOT un u-w

s r ~ m w s umvcaunt

42 U.S.C. 5 1997 - e t seq.

I
VI. ORIGIN

I

I

(PLACE AN x IN ONE BOX

I
Pansferred from

w e a l to District 0 7 -from

UNITED STATES DISTRICT COURT

OOCKET NUMBER

 
 SETTLEMENT AGREEMENT The United States of America (hereinafter the "United States") and the Commonwealth of Virginia (hereinafter "Virginia") agree to settle the above captioned matter (hereinafter "this Action") on the terms and conditions set forth below in this Settlement Agreement (hereinafter the "Agreement"). I. Introduction. 1. By letter dated March 24, 1997, the Acting Assistant Attorney General for Civil Rights, United States Department of Justice, informed the Governor of the Commonwealth of Virginia that the United States was commencing an investigation of the Central State Hospital (hereinafter "CSH") in Dinwiddie County, Virginia, pursuant to the Civil Rights of Institutionalized Persons Act (hereinafter "CRIPA"), 42 U.S.C. § 1997 et seq. 2. CSH is an institution covered by CRIPA and operated by Virginia to provide psychiatric treatment and other services to persons with mental illness. 3. On April 28 through May 2, 1997, representatives of the United States conducted on-site inspections and evaluations of CSH. 4. As a result of these examinations and inspections, the United States advised the Governor of Virginia, in a letter dated June 30, 1997, that, in its opinion, conditions at CSH constituted a pattern or practice of violations of the constitutional and federal statutory rights of CSH patients. 5. Beginning in June 1997, and continuing from time to time thereafter, Virginia voluntarily developed and commenced implementation of a written plan to address the care provided at CSH (the "Plan") ("Exhibit I"). 6. Virginia has at all times denied that conditions at CSH violate the constitutional or federal statutory rights of patients at CSH. 7. Virginia has at all times maintained that, as a matter of state policy, it aspires to provide a level of care to CSH patients in excess of what it regards as the minimal level of care required by the Constitution and federal law. By entering into this Agreement and agreeing to implement the Plan, Virginia does not admit that any of the terms of such documents or the level of care it provides are legally required pursuant to the Constitution or federal law. 8. On May 6, 1999, in anticipation of the execution of this Agreement, the United States filed the Complaint in this Action. 9. The parties agree it is in their mutual interests to avoid adversarial litigation. To that end, the parties have agreed upon the Plan and upon methods of communication and conciliation as set forth in this Agreement. The parties recognize that implementation of the Plan provides CSH patients with a level of care satisfying all constitutional and federal statutory standards at issue in this litigation. 10. The parties agree that the resolution of this case is in the best interests of CSH patients, and otherwise in the best interests of their common citizens. Accordingly, the parties agree as follows: II. Rule 41(a)(2) Dismissal Without Prejudice. 1. Immediately upon execution of this Agreement, the parties shall jointly move the Court for entry of an Order of dismissal without prejudice pursuant to Rule 41(a)(2), in the form attached as Exhibit II. In the event the Court refuses or fails to enter that Order in the attached form, this Agreement shall be null and void. III. Dismissal With Prejudice.

1. The Court shall enter a dismissal of this Action with prejudice upon the occurrence of one or more of the following conditions: a. In the event the United States fails to file a Motion to Restore (defined in § VIII below), Virginia shall be conclusively entitled to an order dismissing this Action with prejudice exactly ten months from the Notice Date (defined in § VII below); b. Joint motion of the parties; c. Unopposed motion of defendants; or d. In the event the United States files a Motion to Restore pursuant to the procedures set forth in § VIII below, but the Court does not find that Virginia failed to achieve substantial compliance with the Plan. IV. Plan Implementation. 1. Virginia agrees to fully implement the Plan by the Notice Date, as defined in § VII(2) below, provided, however, Virginia agrees to implement the nurse staffing provisions contained in Section III of the Plan by December 31, 1999. V. Consultation Tour. 1. To allow the United States an opportunity to observe Virginia's implementation of the Plan, and to promote the sharing of technical information and the amicable resolution of any disagreements, the United States shall retain expert consultants to tour CSH to assess the status of such implementation and to confer with CSH with respect to such implementation. 2. On dates mutually agreed upon by the parties, but no later than 180 days after entry of the Order described in § II above, the United States shall tour the facility with its expert consultants, after reasonable notice to Virginia of the identity and curriculum vitae of those consultants. One additional tour at a mutually agreeable date shall also be conducted prior to the Notice Date, unless both parties agree in writing that such a tour is unnecessary. At least 45 days prior to each tour, the United States shall inform Virginia of the documents its expert consultants will need in preparation for the tour. Said documents shall be substantially similar to those previously requested and provided during expert consultant tours of CSH. The United States agrees to provide information to Virginia based on these tours within 60 days of the tours. The parties agree to confer regarding the desirability of further sharing of technical information, including a conference between the United States' expert consultants and Virginia's professionals. 3. The United States' expert consultants shall tour CSH utilizing the same procedures used during prior United States' expert consultant tours at CSH, including but not limited to procedures governing confidentiality of patient records. 4. The United States shall not commence or support any civil action under this Agreement or otherwise, or initiate any other CRIPA proceeding against Virginia, based on any matter observed during these tours or documents produced in connection with the tours with the exception that the United States may use such documentation and information that it obtains or is provided to support a Motion to Restore filed pursuant to § VIII of this Agreement that Virginia has failed to comply with the nurse staffing requirements contained in § III of the Plan by December 31, 1999, or as provided in § IX of this Agreement. 5. The findings and conclusions of the United States' expert consultants shall not be used by the United States in any court proceeding nor shall they be disclosed or used by the United States for any purpose other than as set forth in § V(4) above, or in § IX of this Agreement.

VI. Interim Reports. 1. Beginning on April 30, 1999, and continuing every three months thereafter until the Notice Date defined in § VII below, Virginia shall provide the United States with quarterly summaries of each reported Category I and II incident as defined in the Standard Administrative Practices and Procedures Manual, Chapter 28, Reporting and Responding to Unusual Incidents, Appendix B (Exhibit III) occurring at CSH (hereinafter "Incident Summaries"), and each open or founded allegation of abuse and/or neglect as defined in Departmental Instruction #33 (Exhibit IV) (hereinafter "Abuse/Neglect Summaries"). The Incident Summaries shall be in the form attached as Exhibit V. The Abuse/Neglect Summaries shall be in the form attached as Exhibit VI. CSH will also provide a quarterly progress report outlining the status of its implementation of the Plan, including its efforts to fill nurse staffing positions. 2. The United States may request reasonable follow-up information, including documents from Virginia, with respect to any incident identified on the Incident and/or Abuse/Neglect Summaries. 3. The United States shall advise Virginia of any alleged deficiencies in the implementation of the Plan ascertained from its evaluation of Incident and/or Abuse and Neglect Summaries and follow-up information. Virginia agrees to confer in person or in writing with the United States with respect to any such alleged deficiencies. VII. Certification Tour. 1. The purpose of the certification tour is to permit the United States to assess the status of Virginia's implementation of the Plan before this case is dismissed with prejudice as provided by § III, so that the United States may file a Motion to Restore, if necessary, pursuant to § VIII. 2. Not later than July 1, 2000, Virginia shall provide written notice to the United States that it may conduct the certification tour. A copy of the notice shall be filed simultaneously with the Clerk of the U.S. District Court in Alexandria. If Virginia fails to send this notice on or before July 1, 2000, the United States shall have the right to provide written notice to Virginia that it will conduct the certification tour. A copy of the notice shall be filed simultaneously with the Clerk of the U.S. District Court in Alexandria. The date such notice is filed with the Clerk, either by Virginia or the United States, shall be deemed the "Notice Date" for purposes of this Agreement. 3. By August 1, 2000, the United States shall inform Virginia of (i) the identity and vitae of any expert consultants it will retain to assess Virginia's compliance with the Plan, and (ii) the documents it seeks to assess Virginia's compliance with the Plan, which shall be substantially similar to those previously requested and provided during expert consultant tours of CSH. 4. By September 1, 2000, Virginia shall inform the United States of the identity and vitae of any expert consultants it will retain for the certification tour, and shall provide the United States with the requested documents. 5. No sooner than September 1, 2000, and no later than October 31, 2000, the United States' attorneys and expert consultants shall tour CSH to assess the status of Virginia's compliance with the Plan. The procedures for such tours shall be substantially similar to those previously used during expert consultant tours at CSH (including, but not limited to, procedures governing confidentiality of patient records), except that Virginia shall have the right for its own attorneys and expert consultants to accompany those of the United States on all aspects of the tour.

6. No later than January 1, 2001, Virginia and the United States shall receive from their respective expert consultants their reports evaluating Virginia's implementation of the Plan. In selecting and retaining their expert consultants, the United States and Virginia shall each be responsible for assuring that said expert reports can be completed by their expert consultants within this time period. 7. No later than February 1, 2001,the United States shall notify Virginia of any alleged deficiencies in Virginia's implementation of the Plan. The United States shall specify by page numbers, paragraphs and subparagraphs, each provision of the Plan which it alleges to have been implemented in a deficient manner. The United States shall set forth in reasonable detail (i) the evidentiary basis of its allegations of deficiency, and (ii) the remedial measures which it proposes to remedy each deficiency. The reasonable details to be provided shall include, but not be limited to, a complete statement of all the opinions of any expert consultants on which the United States relies, the basis and reasons for such opinions and the information considered by the expert in forming such opinions. The United States may, at its option, satisfy the requirement of reasonable detail by providing a copy of said expert's report and by citing to the provisions of the expert's report upon which it relies, if such information, as is specified above, is contained in said expert's report. 8. No later than March 1, 2001, Virginia shall notify the United States of Virginia's concurrence or disagreement with each of the United States' allegations of deficiency and proposed remedial measures. If Virginia concurs with any of the United States' allegations of deficiency, but disagrees with the proposed remedial measure, it shall propose an alternative remedial measure. 9. Between March 1, and April 30, 2001, Virginia and the United States shall endeavor in good faith to resolve any disputes over the United States' allegations of deficiency and/or disputes over the proposed remedial measures. The conciliation process shall include at least one faceto-face meeting between representatives of the parties; and if such meeting does not achieve conciliation, then the conciliation process shall continue with a prompt mediation session before a judicial officer, if feasible under the time frames in this Agreement. During the conciliation process, Virginia shall have the right, but shall not be required, to support its position by disclosing relevant portions of its expert reports. 10. Should Virginia give notice as provided in ¶ 2 of this section prior to July 1, 2000, the dates specified herein shall commence on the first day of the first full month following the Notice Date and follow in time intervals similar to those indicated in §§ V and VII. VIII. Motion to Restore The Action. 1. In the event Virginia and the United States are unable to resolve any dispute concerning the United States' allegations of Virginia's failure to implement the Plan or a provision of the Plan, the United States may file a motion to vacate the dismissal without prejudice and to restore the Action to the Court's active docket ("Motion to Restore") for the purpose of adjudicating allegations by the United States that Virginia has failed to substantially comply with the Plan. 2. The United States may not file a Motion to Restore earlier than the ninth month following the Notice Date, except with respect to an allegation that Virginia has failed to implement the nurse staffing provisions contained in Section III of the Plan. By no later than January 31, 2000, Virginia shall provide the United States with documentation, in a format to be mutually agreed upon by the parties, describing the numbers and deployment of nursing staff. The United States

shall provide Virginia with any allegations that CSH has failed to comply with the nurse staffing provisions of the Plan within 15 days of receipt of the documentation. Virginia shall respond to any such allegations within 15 days of receipt. Within the following 30 days, the parties shall attempt to resolve any disputes involving the alleged nurse staffing deficiencies which shall include at least one face-to-face meeting between representatives of the parties, and a mediation session before a judicial officer, if feasible under the timeframes in this Agreement. The alleged deficiencies shall be subject to a Motion to Restore after March 31, 2000. 3. The Motion to Restore shall (i) identify those portions of the Plan the United States alleges that Virginia has violated, specifying Plan page numbers, paragraphs, and subparagraphs; and (ii) identify with specificity the remedial measures sought by the United States. 4. Any Motion to Restore shall be served upon counsel for Virginia by certified mail, return receipt requested. 5. Unless a different time is ordered by Order of the Court, Virginia shall have twenty (20) days from the receipt of such motion to file its response. 6. Upon the filing of the Motion to Restore, the Action shall be litigated in accordance with the applicable Federal Rules of Civil Procedure, Local Rules, and orders of the Court, including, but not limited to, such rules and orders pertaining to discovery provided, however, that the Complaint shall be deemed amended and superseded in accordance with the allegations set forth within the Motion to Restore pursuant to ¶¶ 2 and 3 above. 7. The United States shall have the burden of proof. To prevail, the United States must show that Virginia failed to achieve substantial compliance with the Plan. 8. The parties shall request the Court to hear such motions and to conduct such trial as may be necessary to adjudicate the Motion to Restore the Action, including the allegations set forth pursuant to ¶¶ 2 and 3 above. If the Court finds that Virginia is not in substantial compliance with the Plan, it may order specific performance of those portions of the Plan which the Court finds Virginia has violated. 9. The exclusive remedy for any alleged failure by Virginia to achieve substantial compliance with the Plan shall be an Order for specific performance pursuant to ¶ 8 above; provided, however, that this limitation shall not be construed as an attempt to limit the power of the Court in the event any such order for specific performance is entered and thereafter violated. Any such order for specific performance may be directed against such officials whom the Court may determine are responsible for such violations. Neither Virginia nor any officials thereof shall be subject to a finding of, or sanctions for, contempt unless an order for specific performance has been entered pursuant to a Motion to Restore and is thereafter violated in such a manner as to make such a finding or sanctions appropriate. The provisions of this paragraph are of the essence of this Agreement. 10. If, following a Motion to Restore after the Notice Date, the Court finds that Virginia is in substantial compliance with the Plan, it shall dismiss this Action with prejudice. IX. Emergency Provision. 1. The United States may seek immediate relief from the Court for the limited purpose of redressing an alleged emergency at CSH. An emergency shall be defined as apattern or practice of violating the Plan that creates an immediate substantial risk of serious bodily harm to CSH patient(s).

2. In any motion seeking relief for an alleged emergency, the United States shall file an enhanced pleading which sets forth the specific facts on which an emergency is alleged, the specific violations of the Plan, and the legal basis for the allegations (hereinafter "Motion for Emergency Relief"). 3. The parties shall confer in good faith in an effort to resolve any such allegations prior to filing any such Motion for Emergency Relief. 4. Any Motion for Emergency Relief shall be served upon counsel for Virginia by certified mail, return receipt requested. 5. Unless a different time is ordered by Order of the Court, Virginia shall have twenty (20) days from the receipt of such motion to file its response. 6. Upon the filing of any Motion for Emergency Relief, the motion shall be litigated in accordance with the applicable Federal Rules of Civil Procedure, Local Rules, and orders of the Court, including but not limited to such rules and orders pertaining to discovery. 7. The United States shall have the burden of proof. To prevail, the United States must prove the existence of an emergency as defined in ¶ 1 above. 8. The parties shall request the Court to hear such motions and to conduct such trials as may be necessary to adjudicate the Motion for Emergency Relief, including the allegations required by ¶ 2 above. If the Court finds that no emergency exists, it shall dismiss the Motion with prejudice. The dismissal shall have no effect on the United States' ability to file a Motion to Restore pursuant to § VIII. If the Court finds that an emergency exists, it may order specific performance of those portions of the Plan which the Court finds gave rise to the emergency. 9. The exclusive remedy for an alleged emergency shall be specific performance pursuant to ¶ 8 above; provided however that this limitation shall not be construed as an attempt to limit the power of the Court in the event any such order for specific performance is entered and thereafter violated. Any Order for specific performance may be directed against such officials whom the Court may determine are responsible for such emergencies. Neither Virginia nor any officials thereof shall be subject to a finding of, or sanctions for, contempt unless an order for specific performance has been entered pursuant to a Motion for Emergency Relief and is thereafter violated in such a manner as to make such findings or sanctions appropriate. X. Interpretation of the Plan. 1. The parties recognize that implementation of the Plan must be evaluated and interpreted in light of standards not expressly set forth in the Plan. In such cases, for purposes of determining whether CSH has implemented the Plan, or any portion thereof, the parties agree that the relevant and applicable standard shall be as follows: Decisions by Virginia with respect to the implementation of policies, procedures, and other activities required by the Plan shall be evaluated for the purposes of determining compliance with the Plan by the "professional judgment" standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982). 2. This Agreement, together with attachments, is an integrated document and contains the entire agreement between the parties, and wholly cancels, terminates, and supersedes any and all previous and/or contemporaneous oral agreements, negotiations, and commitments and writings between the parties thereto with respect to this Action and CSH. 3. Except as provided in ¶ 7 below, no change, modification, extension, termination, discharge, abandonment or waiver of this Agreement or any of the provisions hereof, nor any

representation, promise or condition relating to this Agreement shall be binding upon the parties hereto unless made in writing and signed by the parties or their counsel. 4. Nothing contained in this Agreement or in the Plan shall be construed as an admission or evidence (i) that the practices at CSH have at anytime or in any way violated constitutional standards or other legal standards governing the provision of care at CSH, (ii) that the terms of the Agreement or the Plan are necessary to meet constitutional standards or other legal standards governing the provision of care at CSH, or (iii) that the policies, practices, and procedures described in the Plan did not exist at CSH prior to the initiation of the CRIPA investigation; nor shall this Agreement or the Plan be used by any person or party as the basis for any liability of Virginia except as expressly provided herein with respect to this Action. 5. Each of the terms of the Agreement and the Plan shall be deemed to have been mutually drafted by the parties, and shall not be construed against either party as the author thereof. 6. Deadlines and time references (e.g., use of present and past tense) used in the Plan shall reflect CSH's schedule for implementation as of the original and/or revised date of the Plan. They may be used for purposes of consultation between the United States and Virginia, pursuant to the Consultation Tour provided by Section V. Notwithstanding such deadlines and time references, CSH shall be deemed to have implemented this Plan for all purposes under the Agreement if it has been implemented by the Notice Date, except that the nurse staff provisions contained in Section III of the Plan shall be subject to a Motion to Restore if not implemented by December 31, 1999. 7. Virginia shall have the right to propose modifications to the Plan from time to time by giving the United States written notice of the language proposed for deletion from and/or addition to the Plan. Such proposed modifications shall be deemed effective for all purposes under this Agreement on the date specified in the proposal unless the United States gives Virginia written notice of its objection within 30 days of its receipt of the proposed modification. 8. Virginia shall not be deemed to have failed to achieve substantial compliance with the Plan due to any shortage of staff where such shortage is the result of an unusual level of absences beyond Virginia's reasonable control, or vacancies created by the death, discharge, retirement, or resignation of any employee or by the creation of new positions in response to an increase in census, so long as Virginia takes necessary steps to fill such vacancies with reasonable promptness. 9. In the event the United States hereafter files any motion or commences any action or proceeding, alleging that Virginia has failed to meet any obligations to which it may be lawfully subject under the Americans with Disabilities Act of 1990 ("ADA"), neither the position of the United States nor the position of Virginia shall be in any way prejudiced by the provisions of the Plan found under Part V thereof ("Discharge Planning and Community Placement"). Said provisions shall in no way limit either party with respect to the ADA, including but not limited to arguments regarding constitutional, statutory and/or regulatory interpretation and authority. XI. Miscellaneous. 1. The parties shall request that the Motion to Restore and any other proceeding held in this case be heard by the Honorable Leonie M. Brinkema, United States District Court Judge. Any party may file a motion to vacate the dismissal without prejudice and to restore the case to the active docket for the limited purpose of adjudicating an alleged violation of § V, VI, or VII of this Agreement. Any such motion shall be adjudicated pursuant to the Federal Rules of Civil

Procedure and the local rules of this Court. Any such motion shall state the paragraphs of the Agreement that are alleged to be violated. The exclusive remedy for any such violation shall be an order for specific performance. Any such order for specific performance shall be directed against such officials whom the Court may determine are responsible for such violations. No party nor any official thereof shall be subject to a finding of, or sanctions for, contempt unless such an order for specific performance has been hereafter entered and is thereafter violated in such a manner as to make such finding or sanctions appropriate. The parties shall attempt in good faith to resolve any dispute prior to filing any motion alleging a violation of this Agreement. 2. This Agreement shall be applicable to and binding on the parties to this Agreement, their officers, agents, employees, and successors. 3. Notwithstanding any other provision of this Agreement, the United States shall have no standing to seek, nor shall it be entitled to entry of, any order for specific performance that would, as a practical matter, require the expenditure of funds in any biennium in excess of (i) the level of funding appropriated for the facility by the General Assembly in the 1998-2000 biennium, plus (ii) such additional funding, if any, as may be needed to fund staff positions required by the Plan but not currently filled. Virginia represents its good faith belief that the level of funding appropriated for the 1998-2000 biennium, together with such additional funds as are available to the Governor for funding such staff positions in said biennium, is sufficient to implement the Plan. 4. This Agreement and the Rule 41(a)(2) Dismissal referenced in this Agreement resolve all of the allegations raised in the Complaint. Accordingly, the United States shall not amend its Complaint (except as provided in § VIII ¶¶ 1, 2, and 6, above) nor file any new CRIPA action based on events at CSH occurring prior to entry of any dismissal with prejudice of this Action. 5. Each party shall bear its own costs, including attorney's fees, except that Virginia may move for attorney's fees pursuant to 28 U.S.C. § 1997a(c) at the conclusion of any proceeding brought by the United States pursuant to §§ VIII and IX herein. 6. An executed copy of this Agreement shall be filed with the Clerk of Court, and a copy delivered to the United States District Judge assigned to this Action. 7. The following shall govern the termination of Virginia's obligation under the Agreement and the Plan: (a) subject to the provisions of subparagraph (b), Virginia's obligation with respect to the Agreement and the Plan shall terminate ten months from the Notice Date or with the entry of a Dismissal with Prejudice, whichever is earlier. (b) With respect to any provisions of the Plan which are the subject of a Motion to Restore under § VIII, the obligations of such provisions shall continue pending an adjudication of such Motion to Restore. (c) With respect to any provisions of the Plan for which the Court has entered an order for specific performance, the parties agree to jointly move the Court to dismiss such orders and to dismiss the case with prejudice within one year from the date such order for specific performance was entered, unless and to the extent that the United States has moved for a finding of civil contempt with respect to such order within said one year period.

(d) If the United States moves for a finding of civil contempt, but the Court finds no such contempt, Virginia's obligations under the Agreement and Plan shall terminate as of that time with respect to the provision(s) that was the subject of said motion for contempt. (e) If a finding of civil contempt has been made, the obligations under the provisions of the Plan with respect to which such finding has been made shall be extended for such period as may be required by the Court as a remedy for such contempt. 8. The parties recognize that the community services boards ("CSBs") and local behavioral health authorities referenced in the Plan are agencies of local government rather than state government. Nothing in the Agreement nor the Plan shall be construed to impose any obligation on CSBs or such authorities, nor to impose any obligation on Virginia with respect to funding or directing the activities of CSBs and/or such authorities beyond what may be required by state law. 9. This Settlement Agreement is signed on behalf of the United States by Bill Lann Lee, Acting Assistant Attorney General and other counsel of record for the United States, and on behalf of the Commonwealth of Virginia by William H. Hurd, Senior Counsel to the Attorney General, and other counsel of record for the Commonwealth of Virginia. Each of said counsel represents that she or he has and/or has obtained all authority necessary to sign on behalf of the United States and the Commonwealth of Virginia, respectively. Counsel for the Commonwealth further represent that they execute this Settlement Agreement on behalf of the Commonwealth with the authorization consent and/or approval of the other Defendants in this case, to-wit: Governor James S. Gilmore III, Secretary Claude A. Allen, Commissioner Richard E. Kellogg, and James S. Reinhard, M.D., Acting Director of Central State Hospital. This Settlement Agreement between the United States of America and the Commonwealth of Virginia regarding the Central State Hospital is signed on behalf of the United States of America by the following: ______________________________ By: Bill Lann Lee, Acting Assistant Attorney General, Civil Rights Division ______________________________ By: Steven H. Rosenbaum, Chief, Special Litigation Section ______________________________ By: David Deutsch, Senior Trial Attorney, Special Litigation Section ______________________________ By: Richard Parker, Assistant United States, Attorney This Settlement Agreement between the United States of America and the Commonwealth of Virginia regarding the Central State Hospital is signed on behalf of the Commonwealth of Virginia by the following: ______________________________ By: William H. Hurd, Senior Counsel to the Attorney General ______________________________ By: Ashley L. Taylor, Jr., Deputy Attorney General _______________________________ By: Jane D. Hickey, Senior Assistant Attorney General ______________________________ By: Garland L. Bigley, Assistant Attorney General

 
 f~xf:.\' :'f rhr Itiiinmr At: •—•" Ofir-nl

U.S. Department of Justice Civil Rights Division
llti.\liiti\tt<m. D.C. 2OOS5

The Honorable George Allen Governor Commonwealth of Virginia State Capitol
Richmond, Virginia 23219

MAY 6 1994

Re: Eastern State Hospital and Hancock Geriatric Center

Dear Governor Allen:
I am writing in reference to our ongoing investigation of the Eastern State Hospital and the Hancock Geriatric Center (hereinafter "Eastern State"), Williamsburg, pursuant to the Civil Rights of Institutionalized Persons Act (hereinafter "CRIPA"), 42 U.S.C. § 1997 et geg. The purpose of this letter is to advise you of the constitutional violations ascertained during this investigation, the supporting facts, and recommended minimum remedial measures.

Patients of state operated psychiatric facilities have a fundamental Fourteenth Amendment due process right to reasonable safety and adequate medical care, including psychiatric services. Younabera v. Romeo. 457 U.S. 307 (1982). Patients have a right to adequate psychiatric treatment which includes treatment programs designed to protect their liberty interests. Such treatment programs must be sufficient to permit each resident an opportunity to improve or be cured and to function as independently as their psychiatric conditions permit. See, e.g., Wyatt v. Sticknev, 325 F. Supp. 781 (M.D. Ala. 1971). Such programs must provide opportunities for patients to acquire and maintain skills that will enable each of them to cope more effectively with the demands of their own person, their environment, and to raise the level of their mental, behavioral, physical, and social efficiency. S_ee, e.g. , Gary W. v. Louisiana. 437 F. Supp. 1209, 1219 (E.D. La. 1976).

The facts disclosed during the course of our investigation supporting our findings of unconstitutional conditions are set forth below. These facts are based upon tours conducted by our consultants during May, 1993. The reports of these consultants are being sent to the Commissioner of Mental Health, Mental Retardation and Substance Abuse under separate cover.

U.S. v. Virginia

MH-VA-O62-O6T

I. Patients are being denied adequate psychiatric treatment, including treatment programs.
A. Patient diagnoses are not developed consistent with generally accepted professional standards.
Diagnoses of patients fail to comport with generally accepted professional standards. First, little consideration is given to patient symptoms, history, or cognitive assessments in the development of a diagnosis. Psychiatrists appear to rely primarily upon an interview of the patient. Moreover, to the extent relevant assessments are performed, they are superficial and do not reflect information professionals generally rely upon in utilizing such assessments. For example, for elderly patients calcium levels were not consistently taken even though inadequate amounts of calcium can lead to psychiatric symptoms. Similarly, dementia work-ups are often incomplete due to the absence of neuroimaging studies which can reveal evidence of a tumor, hematoma, or a stroke. Without complete and adequate assessments, a correct diagnosis becomes problematic.
In addition, patients often have inconsistent, unreconciled, diagnoses. For example, while at the facility, one patient had been diagnosed as suffering from a bipolar disorder and, at a later time, as schizophrenic, paranoid type with mild mental retardation. In another case, a patient had been diagnosed at various times as suffering from a schizoaffective disorder, borderline personality disorder, intermittent explosive disorder, and, then, depression. There was no evidence in the record to reconcile these widely varying, conflicting diagnoses. Absent a proper diagnosis, proper treatment is not possible.
Inadequacies in Eastern State's diagnostic procedures, coupled with inadequate assessments, have led to erratic, inconsistent, or inaccurate diagnoses of patients. Although it has been generally accepted in the psychiatric profession for many years that treatment decisions, including diagnoses, should be developed utilizing a multi-disciplinary approach reflecting the direct involvement of the array of professionals involved in the treatment of the individual patient, our consulting psychiatrist found little, if any evidence that the multidisciplinary approach was being followed at Eastern State. In sum, defective diagnostic practices fail to reflect compliance with generally accepted medical standards and result in erroneous diagnoses and inadequate treatment.

B. Treatment plans for patients are inadequate.
Inadequate diagnostic procedures, including the absence of interdisciplinary team involvement, have resulted in treatment plans for patients which fail to meet their needs. The standard of care requires the development of comprehensive individualized plans for patients by a team of treating professionals, including psychiatrists, psychologists, nurses, social workers, various relevant therapists, and direct care workers. The failure to include a competent and qualified psychologist in the development of a patient's treatment plan is a gross departure from generally accepted practice and is unacceptable.
Moreover, our consulting psychiatrist found that those plans in existence do not reflect an integrated treatment approach. The use of medications is not properly integrated with non-drug treatment therapies. In addition, our psychologist found treatment programs to be deficient. Significantly, not all patients have a treatment plan. Our psychologist also determined that the goal of the hospital to provide each patient with 4 hours of psychosocial programming each day is not being met — and would be inadequate in any event. In addition, he observed a significant number of residents engaging in inappropriate behaviors who did not have behavior management plans, a substantial departure from generally accepted practice.
In sum, treatment programs, including psychosocial programs, recreation, occupational therapy, and other therapy programs are inadequate.
C. staffing is inadequate to afford adequate treatment programs.
During the course of his review of treatment and other therapeutic activities at Eastern State, our consulting psychologist determined that many patients were not involved in treatment programs due to the absence of adequate staff. For example, he noted entries in records which indicated that patients were not in various activities due to insufficient staff. In addition, he found that various patients were on units more restrictive than their psychiatric conditions warranted due to staffing shortages. Indeed, he found two female, patients living on an otherwise all male ward because staff on the female

- 4-
patients' original living unit was insufficient to protect them. Furthermore, he observed rocking and other stereotypic behaviors in residents which could be addressed by additional staff.
D. In the absence of adequate treatment programs, patients are subjected to unreasonable physical restraint.
Hospital policy permits physical restraint or the use of seclusion, i.e.. the placement of a patient alone in a locked room, for up to 8 hours. This policy, especially in light of the absence of any requirement for psychiatric evaluations at acceptable intervals, is professionally unacceptable. Further, physicians' orders for restraint and seclusion are deficient in that they fail to consistently state the behaviors or conditions that would dictate the release of the patient. Our consultant also found the use of vest and wrist restraints in the Hancock Unit to be excessive. Finally, our psychiatrist noted that the seclusion room in Building 12 revealed three dangers: 1) areas where a patient cannot be observed; 2) ceiling fixtures that could facilitate suicide; and 3) unsafe window screens.
II. Medication practices are deficient.
A. Pharmacological treatment fails to comport with professional standards.
Pharmacological treatment at Eastern State is characterized by frequent dose changes, drug changes, drug add-ons, and PRNs ("pro re nata" or as needed), absent a professionally required evaluation of patient need, including an appropriate assessment of the use of particular drugs. Our consultant found unacceptable polypharmacy, the use of drugs where there was no professionally acceptable justification for their use, inappropriate dosages, and other deficient practices.
Psychiatrists at the facility rarely, if ever, devise a psychopharmacological plan for a patient and then evaluate drug effects at appropriate intervals. According to our psychiatrist, this leads to the chronic, unnecessary administration of psychotropic drugs, including drugs which have not proved effective. It is common practice at Eastern State to simply add drugs when the patient fails to respond to the current drug therapy — a professionally unjustifiable practice — resulting in inappropriate polypharmacy. . For example, a patient on eight

- 5-
psychotropic medications suffered a cardiac arrest. The cardiologist at the facility determined that the cardiac arrest was caused by the multiple medications. Our psychiatrist estimated that at least a quarter of all patients in the facility are receiving unnecessary drugs. In addition, the lack of systematic medication practices has led to inappropriate polypharmacy as well as to an inappropriately high rate of PRN use of medication.
B. Monitoring of drug usage is deficient.
Monitoring of drug treatment is deficient in at least two respects. First, blood level monitoring of psychotropic medication is untimely or not done at all. For example, when lithium blood levels were finally taken for one patient after an unreasonable delay, his levels were in the toxic range. In those cases where the levels are taken, physicians often fail to act upon the results. For example, when a patient's level was not in the presumed therapeutic range, no action was taken to increase the medication or change to a different drug.
In addition, monitoring of side effects of psychotropic medications is not performed adequately. Although this problem was noted throughout the facility, it was particularly acute in the Hancock Unit housing elderly patients. Generally, side effects in elderly persons may be more acute due to increased pharmacosensivity to drugs. A major side effect of many psychoactive medications is a drop in blood pressure upon standing which may cause dizziness, a particular hazard for elderly persons who may already be susceptible to falling. Yet, there is no indication in any patient record that this common side effect of psychotropic drugs is being,.monitored. Moreover, there was no evidence of postural blood pressures or electrocardiograms for elderly patients at varying dosage levels to evaluate the effects of the medication on general health.
Finally, the reporting of adverse drug indications appears deficient. Eastern State's records indicate that only two adverse drug reactions are reported per month. However, our psychiatrist observed that given the present scope of use of psychotropic medication at the facility, the system for reporting adverse drug reactions is inadequate.
In sum, our consultant determined that the use and monitoring of psychotropic drugs represent a significant departure from generally accepted practice, expose patients to

- 6-
harm, and particularly threaten the elderly patients of the Hancock Unit.
III. General medical care is inadequate.
Our consultant concluded based upon a review of patient charts and interviews of staff that medical staff fail to respond in a timely manner to the serious medical needs of patients. The failure to intervene in a timely manner ranges from such things as the failure to follow-up abnormal lab reports, adjust medications for patients at risk of suicide, perform lab tests when ordered, or act when patients exhibit severe weight loss, to situations where patients are not transferred to general hospital facilities when necessary. Our consultant also found excessive mortality due to choking and aspiration. Slow responses in evaluating serious medical problems place patients at grave risk.
Although Eastern State has a protocol in place for evaluating geriatric patients with a history of falls, physicians do not consistently participate in such evaluations. Our consultant found numerous cases where a patient was confined to a gerichair for unsteadiness but no evaluation or assessment had been done by a physician as to the cause. Especially where, as here, patients already at risk of falling are prescribed drugs where unsteadiness is a recognized side effect, the failure to determine the reasons for their unsteadiness poses a significant threat to their health and well-being.
Finally, physician coverage on nights and weekends is inadequate. Presently, one physician is on-site and one is on-call during these periods of time. Neither physician, however, is necessarily a psychiatrist and,v as a result, there are significant intervals of time where no 'psychiatrist is on-duty or on-call. Moreover, having only one physician on duty for such periods of time is likewise inadequate in light of the size of the population and their complex medical and psychiatric problems. In addition, due to the lack of psychiatrists, general physicians serve as psychiatrists in the Hancock Unit — a significant departure from generally accepted professional practice.
IV. Fire safety precautions are inadequate.
Although a number of systems are in place to ensure the safety and evacuation of patients in the event of fire, we noted the absence of smoke detectors in the old wing of the hospital.

- 7-
This is a serious deficiency which needs to be remedied in order to provide proper, early warning of any fire.

V. Minimum remedial measures

The following measures need to be implemented at Eastern State in order to protect the constitutional rights of patients confined there.

A. Psychiatric care:

1. Evaluate or assess each patient consistent with generally accepted psychiatric standards to develop an appropriate, accurate diagnosis.

2. Based upon an appropriate diagnosis, develop through a multi, inter-disciplinary approach a professionally based treatment program. Such programs must be sufficient to provide each patient a reasonable opportunity to be cured, improve, or function as normally as their psychiatric condition permits.

3. Hire, train, and maintain an appropriate number of both professional and direct care staff to implement such programs, monitor progress, and modify such plans, as appropriate.

4. Revise seclusion and restraint policies to comport with generally accepted psychiatric standards; modify seclusion rooms, as necessary, to ensure reasonable safety.

B. Medication practices:

,.

1. Evaluate the drug regimen of each patient to ensure compliance with generally accepted psychiatric standards; develop a psychopharmacological plan for each patient; ensure that the use of all drugs is professionally justified; eliminate intraclass polypharmacy.

2. Develop and implement a professionally based system to monitor the use of all psychoactive medication, including timely blood-levels, general monitoring of side-effects, and reporting and responding to adverse drug indications.

- 8-
C. General medical:
1. Develop and implement an overall system of medical care which is sufficient to respond to the medical needs of all patients in a timely manner.
2. Hire and retain additional physicians and psychiatrists to ensure appropriate physician coverage at all times; specifically have a psychiatrist on duty at the hospital at all times and assign sufficient psychiatrists to the Hancock Unit to ensure adequate psychiatric treatment.
3. Ensure that geriatric patients at risk of falls are adequately evaluated by a physician.
D. Fire Safety:
Install smoke detectors in the old wing- of Eastern State Hospital.
E. Re-organization of hospital and services:
While our consultants recognized that the current management of the facility is striving to improve conditions, we must note that the facility as a whole represents an antiquated, outmoded instrument for caring for individuals with mental illness. The facility fails to provide patients treatment in an environment that permits contacts with the rest of society and mainstream social institutions, demands independent functioning and permits the exercise of judgment, and contact with family members. In re-organizing Eastern State to implement the remedies outlined above, state officials must act to (1) structure the hospital to serve as an acute care facility for individuals requiring evaluation and stabilization and (2) design and expand, as appropriate, community-based mental health services to serve most other patients.
Our consultants concluded that, with some exceptions, the facility did not provide nor seek to provide more than basic custodial care. Treatment programs, an appropriate therapeutic environment, and other activities needed to provide opportunities to patients to be cured or improve their mental condition simply did not exist. In these circumstances, immediate steps need to be taken to develop a plan which will, as outlined above, materially alter the operation of the hospital and develop

- 9 -
alternate, community based services which offer a reasonable promise of protecting the liberty interests of patients on the most cost efficient basis.
Pursuant to CRIPA, the Attorney General may initiate a lawsuit to correct deficiencies at an institution or otherwise act to protect the rights of patients 49 days after appropriate officials have been notified of the relevant violations of law. 42 U.S.C. § 1997b(a)(l). Therefore, we anticipate hearing from you as soon as possible and not later than 49 days after the date of this letter with any response you may have to our findings and a description of the specific steps you have taken or intend to take on both a long and short term basis to implement the remedies identified in this letter. If you do not respond within the designated time period, we will consider initiating an action against your jurisdiction to remedy the unconstitutional conditions we have identified. In your response, please indicate your willingness to enter into a judicially enforceable agreement to memorialize any agreement we may subsequently reach in this matter.

We look forward to working with you to resolve this matter in a reasonable and practical manner. If you or any member of your staff has any questions, please feel free to call David Deutsch or Judy Preston, the lawyers assigned to this matter, at (202) 514-6270 or 514-6258, respectively.

Sincerely,

/

\

Deval L. Patrick Assistant Attorney Gerferal
Civil Rights Division
cc: The Honorable James S. Gilmore Attorney General Commonwealth of Virginia
Mr. King E. Davis Commissioner Department of Mental Health, Mental Retardation
and Substance Abuse
Mr. John M. Favret Director Eastern State Hospital
Helen F. Fahey, Esquire United States Attorney Eastern District of Virginia

 
 U.S. Department of Justice

£//

Civil Rights Division

iV o> ilu H..<;...-ii

February 8, 1995

• ,wu. The Honorable George Allen
Richmond, Virginia 23219

11111111J.S J 11jjf 111 MH-VA-002-002

Re: Eastern State Hospital

Dear Governor Allen:

My staff and I appreciated the opportunity to meet with your Deputy Attorney General, William Hurd, and his staff on . January 31, 1995, to discuss our investigations pursuant to the Civil Rights of Institutionalized Persons Act of three institutions (Northern Virginia Training Center, Eastern State Hospital, and Northern Virginia Mental Health Institute) operated by the Commonwealth. We have agreed to meet once again on or before February 10, 1995, in order to determine whether we can come to some agreements in these matters.

Prior to that meeting, we thought it appropriate to further apprise you of our most recent findings and our determination that federal statutory violations exist at the Eastern State Hospital and the Hancock Geriatric Center ("ESH"). Our investigation of ESH was initiated on September 30, 1992 and has been pending absent any resolution for a protracted period of time.

Following a full evaluation of conditions at ESH, we most recently advised Commonwealth officials of our findings of continuing constitutional violations at the facility in a letter addressed to you dated May 6, 1994. In summary, we found unconstitutional conditions of confinement at the facility. Specifically, we found deficiencies in psychiatric treatment, including treatment programs, the design and implementation of training programs, excessive and unjustifiable use of physical restraints, inadequate numbers of direct care and professional staff, inadequate medical care, including medication practices, and a facility that as a whole, represents an outdated and ineffective node of caring for individuals with mental illness. A copy of our letter is attached for your further information.

- 2 -
In addition, our review of this matter has led us to determine that the federal statutory rights of patients are being violated. More specifically, patients' rights pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq.. Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794 et sea., the provisions of the Medical Assistance Program ("Medicaid") established under Title XIX of the Social Security Act, 42 U.S.C. § 1396r et sea., and the regulations promulgated pursuant thereto, and the Health Insurance Program for the Aged and Disabled ("Medicare") established under Title XVIII of the Social Security Act, 42 U.S.C. § 1395i e_t seq.., and the regulations promulgated pursuant thereto, are being violated by various acts, practices, and conditions at ESH. Our review also indicates that the rights of the patients guaranteed by Virginia state law are also being violated. See, e.g., Va. Code Ann. § 37.1 - 84.1 (Mitchie 1994).
ESH fails to provide constitutionally required treatment and training to its mentally ill and geriatric population, due in large part to inadequate numbers of and inadequately trained staff to provide care. The inadequate staffing and lack of staff training have resulted in a high number of unnecessary patient injuries and accidents. Our review of patient accidents and injuries confirmed that inadequate staffing and insufficient training and supervision are serious deficiencies at ESH.
Patients are also being denied adequate psychiatric treatment, including treatment programs. In the absence of adequate treatment programs, patients are subjected to unreasonable and undue physical restraint. Our consultants found the use of vest and wrist restraints in the Hancock Geriatric Unit to. be excessive. Moreover, ESH's use and monitoring of psychotropic and psychoactive medications represent significant departures from accepted medical practice. It is common practice at ESH to simply add drugs when the patients fail to respond to the current drug therapy — a professionally unjustified practice — resulting in inappropriate polypharmacy. Our consultant psychiatrist estimated that at least a quarter of all ESH patients are receiving unnecessary drugs.
Finally, as noted in our May 6, 1994, findings letter, ESH as a whole "represents an antiquated, outmoded instrument for individuals with mental illness." ESH fails to provide patients treatment in an environment which meets their individualized needs. Specifically, the facility fails to provide patients treatment in an environment that promotes their individualized growth, development, and social well-being and permits the exercise of judgment and contact with family members, society and mainstream social institutions. Where mentally ill persons can benefit frcn placement in community based programs and facilities, and especially where professionals have deternir-ed that such placement is appropriate, this unnecessary segregation

of such persons within an institution violates both the ADA and Section 504. Moreover, the Commonwealth has failed to provide adequate ccrr.nunity services to prevent the need for continued hospitalization and/or repeat hospitalizations due to a lack of appropriate alternatives.
As we have specified in other correspondence, the remedies set forth ir. our letter of May 6, 1994, are necessary to eliminate continuing constitutional violations as well as the federal statutory and state law violations set forth here. ESH must be reorganized to: (1) structure the hospital to serve as an acute care facility for individuals requiring evaluation and stabilization and (2) design and expand, as appropriate, community-based mental health services for patients who should be served in the community.
In closing, I can only express my hope- that we can wor>: together to resolve this long outstanding matter to the benefit of the patients of ESH.
Deval L. Patrick Assistant 'Attorney General
Civil Rights Division
Enclosure
cc: Ms. Kay Coles James Secretary Department of Health and Kunan Resources
Dr. Timothy Kelly Coms-issioner Department of Mental Health and
Mental Retardation
Ms. Janet Hill Director Office of Mental Retardation
Mr. John M. Favret Director Eastern State Hospital
Helen F. Fahey, Esquire United States Attorney Eastern District of Virginia

 
 AEP:MHN:DD:RCB:CC:JP:JY:CA:drb DJ 168-79-27,29,30
Virginia facilities

Deval L. Patrick Assistant Attorney General Civil Rights Division

Arthur E. Peabody, Jr. Chief Special Litigation Section

Pursuant to our discussions after our meeting with Virginia Deputy Attorney General Hurd and his staff on January 31, 1995, I am attaching two letters for your signature to be sent to Governor Allen which apprise him of our recent findings and of federal statutory violations at the Northern Virginia Training Center ("NVTC"), a facility for the developmentall·y disabled, in Fairfax,—Virginia, and at the Eastern State Hospital and the Hancock Geriatric Center ("ESH"), a psychiatric hospital with a self-contained nursing home, in Williamsburg, Virginia.

We recommend that the attached amended notice letters be

sent to Governor Allen immediately. JThe letters amend our -

earlier "notice letters to provide the additional notice of

feüeral__statutory violations. The letters also incorporate-our

mopt recent- correspondence to the Virginia Attorney General

regarding continuing violations of the rights of patients and

ifr

residents. As discussed, if suit is necessary we wish to add these claims, to the case, and by sending these letters the

st¡atutorily required 49 day waiting period will begin to run as

soon as possible.

Attachments Approved: Disapproved: CøituT`.ents: c¢: Records Chrono Peabody Deutsch Bowman Cheng Preston
Yost Alford Hold

 
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U.S. District Court Eastern District of Virginia (Alexandria) CIVIL DOCKET FOR CASE #: 1:96-cv-00284-LMB

CLOSED

United States of v. Commonwealth of VA, et al Assigned to: Judge Leonie M. Brinkema Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 03/04/1996 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff United States of

represented by Deval L. Patrick United States Department of Justice Housing & Civil Enforcement Section PO Box 65998 Washington, DC 20035-5998 **NA* (202) 514-4738 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Helen F. Fahey United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Parker United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Commonwealth of Virginia

David M. Deutsch 137 N Main St Suite 502 Dayton, OH 45402 (937) 223-7170 ATTORNEY TO BE NOTICED
represented by Garland Locks Bigley Office of the Attorney General

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Defendant George Allen
Defendant Robert Metcalf Acting Secretary, Department of Health and Human Resources
Defendant Timothy Kelly Commissioner, Department of Mental Health, Mental Retardation and Substance Abuse Services
Defendant Russell Perella Director, Office of Mental Health

900 E Main St Richmond, VA 23219 (804) 786-2071 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Hickey Office of the Attorney General 900 E Main St Richmond, VA 23219 (804) 786-2071 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garland Locks Bigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garland Locks Bigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garland Locks Bigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garland Locks Bigley (See above for address)

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Services
Defendant John M. Favret Director, Eastern State Hospital

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garland Locks Bigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane D. Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/04/1996 03/04/1996 03/05/1996 03/25/1996
04/15/1996 04/15/1996
04/15/1996 04/15/1996
04/15/1996

#

Docket Text

1 COMPLAINT (clerk) (Entered: 03/05/1996)

NOTICE of Lawsuit and Waiver of Service forms given to attorney for service by mail as to defts (clerk) (Entered: 03/14/1996)

2 NOTICE of Attorney Appearance for United States of by Richard Parker (clerk) (Entered: 03/05/1996)

3 ORDER that the Summons and Complaint shall be deemed to have been served on all defts on 3/6/96 and defts shall have until 4/15/96 to respond to complaint-ent.& filed ( signed by Judge James C. Cacheris ) Copies Mailed: y (clerk) (Entered: 03/27/1996)

4 MOTION by defendants to Dismiss pursuant to Rule 12(b)(1) (Will Notice) (clerk) (Entered: 04/19/1996)

5 MEMORANDUM of Law by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret in support of [4-1] motion to Dismiss pursuant to Rule 12(b)(1) (clerk) (Entered: 04/19/1996)

6 MOTION by defendants to Dismiss for improper venue, or in the alternative, to transfer to Newport News Division (Will Notice) (clerk) (Entered: 04/19/1996)

7 MEMORANDUM by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret in support of [61] motion to Dismiss for improper venue, or in the alternative, to transfer to Newport News Division (clerk) (Entered: 04/19/1996)

8 MOTION with Memorandum in Support by Commonwealth of VA,

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04/26/1996 04/26/1996 04/26/1996 04/29/1996
04/29/1996 04/29/1996 04/29/1996 05/01/1996 05/07/1996 05/07/1996 05/07/1996 05/09/1996

George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret for More Definite Statement (clerk) (Entered: 04/19/1996)
9 MOTION by United States of to Consolidate Cases 96-283 and 96-284 (clerk) (Entered: 04/29/1996)
10 MEMORANDUM by United States of in support of [9-1] motion by United States of to Consolidate Cases 96-283 and 96-284 by United States of with exhibits (clerk) (Entered: 04/29/1996)
11 NOTICE of Hearing: Motion Hearing set for 10:00 5/10/96 for [9-1] motion by United States of to Consolidate Cases 96-283 and 96-284 (clerk) (Entered: 04/29/1996)
12 NOTICE of Hearing: Motion Hearing set for 10:00 5/10/96 for [8-1] motion for More Definite Statement, set for 10:00 5/10/96 for [6-1] motion by defendants to Dismiss for improper venue, or in the alternative, to transfer to Newport News Division, set for 10:00 5/10/96 for [4-1] motion by defendants to Dismiss pursuant to Rule 12(b)(1) (clerk) (Entered: 04/29/1996)
13 MEMORANDUM of Law by United States of in opposition to [4-1] motion by defendants to Dismiss pursuant to Rule 12(b)(1) (clerk) (Entered: 04/30/1996)
14 MEMORANDUM of Law by United States of in opposition to [6-1] motion by defendants to Dismiss for improper venue, or in the alternative, to transfer to Newport News Division by (clerk) (Entered: 04/30/1996)
15 MEMORANDUM of Law by United States of in opposition to [8-1] motion for More Definite Statement (clerk) (Entered: 04/30/1996)
16 SCHEDULING ORDER setting Discovery cutoff 8/30/96 ; Pretrial Conference for 10:30 9/19/96 ; ( signed by Judge Bryan ) Copies Mailed: yes (clerk) (Entered: 05/01/1996)
18 MEMORANDUM by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret in rebuttal to [14-1] opposition memorandum by United States of (clerk) (Entered: 05/14/1996)
19 REBUTTAL MEMORANDUM by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella in support of [8-1] motion for More Definite Statement by defendants (clerk) (Entered: 05/14/1996)
20 REBUTTAL MEMORANDUM by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella in support of [4-1] motion by defendants to Dismiss pursuant to Rule 12(b)(1) by defendants (clerk) (Entered: 05/14/1996)
17 MEMORANDUM by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret in opposition to

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05/10/1996
05/21/1996
07/18/1996 07/18/1996 07/18/1996 07/18/1996 06/10/1997 06/29/1998 03/25/1999 03/25/1999

[9-1] motion by United States of to Consolidate Cases 96-283 and 96-284 by United States of (clerk) (Entered: 05/09/1996)
Minute entry: Judge Brinkema. Reporter: McCoy; matter on for hrg. on defts.' motions; appearances: of counsel; pltf.(U.S.) motion to consolidate C/A's 96-283 and 284 - argued and denied; defts.' motion for more definite sattement; defts.' motion to dismiss for improper venue(or to transfer to N.N. Div.) - argued and ruling held in abeyance, U.S. has 10 days to get a proper cert. w/appropriate language; counsel to meet w/LMB in chambers on 5-15-96 @ 9:00 for settlement conf.; defts.' motion to dism. per FRCP 12(b)(1) - not ruled on (clerk) (Entered: 05/14/1996)
21 ORDER For the reasons stated in open court, pltf's motion to consolidate cases is denied. Deft's motion to dismiss for inproper venue is or in the alternative to transer to Newport News is granted. The transfer is stayed to allow for a consolidated settlement. Deft's motion to dismiss pursuant to rule 12(b)(1) is granted. Ordered that pltf file an amended certification within 10 days of the issuance of this order. This ruling is also stayed to allow for settlement efforts. Deft's motion for more definite statement is denied. Because of intense settlement efforts, all discovery is stayed. Entered and Filed[9-1] [8-1] [6-1] 4-1] signed by Judge Leonie M. Brinkema ) Copies Mailed: yes (clerk) (Entered: 05/28/1996)
CASE assigned to Judge Leonie M. Brinkema (clerk) (Entered: 07/19/1996)
Case closed (clerk) (Entered: 07/19/1996)
22 Settlement Agreement-filed by parties. (clerk) (Entered: 07/19/1996)
23 ORDER that in light of the Settlement Agreement, this action is dismissed without prejudice pursuant to Rule 41(a)(2)-ent.& filed ( signed by Judge Leonie M. Brinkema ) Copies Mailed: y (clerk) (Entered: 07/19/1996)
24 MODIFICATION of settlement agreement - filed by plaintiff United States of, defendant Commonwealth of VA (mcke) (Entered: 06/13/1997)
25 NOTICE for Certification Tour by Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret (clar) (Entered: 06/29/1998)
26 JOINT MOTION by United States of, Commonwealth of VA, George Allen, Robert Metcalf, Timothy Kelly, Russell Perella, John M. Favret by defendant, plaintiff to Dismiss this action with prejudice (clerk) (Entered: 03/25/1999)
27 ORDER of DISMISSAL of the [26-1] joint motion by parties and based upon dfts' substantial implementation of the Plan as agreed in the Settlement Agreement between the parties, this Court, in accordance with Rule 41(a)(2) of FRCP, hereby dismisses this case with prejudice. entered & filed. to Dismiss this action with prejudice ( signed by Judge

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03/25/1999

Leonie M. Brinkema ) Copies Mailed: yes (clerk) (Entered: 03/30/1999) Case closed (clerk) (Entered: 03/30/1999)

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