Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

UNITED STATES OF AMERICA,

PLAINTIFF

Y.

CASE NO. 4:09CV00033 WRW

STATE OF ARKANSAS, et aI.,

DEFENDANTS

ANS\VER A.ND AFFIRMATIVE DEFENSES Defendants State of Arkansas. Governor Mike Beebe in his official capacity only, John M. Selig in his official capacity only. James C. Green in his official capacity only, and Calvin Price in his official capacity only, hereby answer the Complaint and aver the following: 1. PARAGRAPH ONE (1) is ADMITTED in part and DENIED in part. Defendants specifically DENY that they are "egregiously and flagrantly depriving individuals ... of rights, privileges, or immunities secured and protected by the Constitution and laws ofthe United States," Defendants further DE~'Y any implication that the Plaintiff has complied with the Civil Rights ofInstitutionalized Persons Act C"CRIPA") or is entitled to any injunctive relief. Defendants ADMIT that the United States Attorney General is filing this Complaint on the behalf of the United States of America. 2. PARAGRAPH TWO (2) is ADMITTED. 3. PARAGRAPH THREE (3) is DENIED as stated. By way of further answer. the United States is authorized to initiate actions of this type but only after full compliance with CRlPA. Defendants DENY any implication that the Plaintiff has in this case fully complied with CRlPA.

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4. PARAGRAPH FOUR (4) is ADMITTED in part and DENIED in part. Defendants ADMIT that the United States Attorney General has certified that all pre-filing requirements have been met. Defendants DEl'I'Y that such pre-filing requirements have been met.
5. PARAGRAPH FIVE (5) is ADMITTED. 6. PARAGRAPH SIX (6) is ADMITTED in part and DENIED in part. Defendants DENY that the State of Arkansas owns the Conway Human Development Center ("CHDC"). but ADMIT that the Board of Developmental Disabilities Services owns and has charge ofthat property. Defendants DEl''Y that the State operates the CHDC or is responsible for the services and supports provided to individuals who reside at the CHDC. Defendants ADMIT that the Board of Developmental Disabilities Services (which is a Board authorized under State law. see Ark. Code Ann. § 20-48-401 et seq.) is responsible in its official capacity for the operation of the CHDC and to provide services and supports to CHDC residents. to the extent that the Board has not otherwise delegated its authority to the Director of Developmental Disability Services. 7. PARAGRAPH SEVEN (7) is ADMITTED in part and DENIED in part. Defendants ADMIT that the CHDC is a State facility but DENY that the State controls the operations of the CHDe. See Response to ~ 6, supra. Defendants ADMIT that the CHOC provides services to persons with developmental disabilities. 8. PARAGRAPH EIGHT (8) is ADMITTED in part and DENIED in part. Defendants ADMIT that Mike Beebe is the Governor of the State of Arkansas, but DENY that he is responsible for the operation of the CHDe. See Response to ~ 6, supra.
2

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9. PARAGRAPH NINE (9) is ADMITTED in part and DENIED in part. Defendants ADMIT that John Selig is the Director of the Arkansas Department of Human Services. but DEl'I'Y that he has responsibility for overseeing the operation of the CHDC~. See Response to,-: 6. supra.
10. PARAGRAPH TEN (10) is ADMITTED in part and DENIED in part. Defendants ADMIT that Dr. James C. Green is the Director of the Division of Developmental Disabilities Services of the Arkansas Department of Human Services. and further ADMIT that he is responsible for overseeing the operation ofthe CHDC to the extent that the Board of Developmental Disabilities Services has delegated that authority to him. See Response to ~ 6, supra. Defendants DENY the remaining allegations set forth in paragraph ten of the Complaint.
11-12. PARAGRAPHS ELEVEN (11) and TWELVE (12) are ADMITTED. 13. PARAGRAPH THIRTEEN (13) is ADMITTED in part and DENIED in part. Defendants ADMIT that those Board members and other State officials who operate the CHDC have certain responsibilities as to the operation of CHDC and for the health and safety of the persons residing at CHDC. See Response to ,-; 6. supra. However. since the Plaintiff does not define those responsibilities, this paragraph must be DENIED to the extent that it does not recognize any limits to those responsibilities. Defendants DENY the remaining allegations set forth in PARAGRAPH THIRTEEN (13) of the Complaint. 14. PARAGRAPH FOURTEEN (14) is ADMITTED. 15. PARAGRAPH FIFTEEN (15) is a LEGAL CONCLUSION to which no responsive pleading is required. To the extent that a response is deemed to be necessary, Defendants ADMIT that those Board members and other State officials who operate the CHDC have certain obligations to the individuals residing at CHDC. but DENY this paragraph to the
3

Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 4 of 10
extent that it fails to identify those obligations. The remaining allegations set forth in PARAGRAPH FIFTEEN (15) are DENIED.
16. PARAGRAPH SIXTEEN (16) is a LEGAL CONCLUSION to which no responsive pleading is required. To the extent a response is deemed to be necessary. Defendants ADMIT that those Board members and other State officials who operate the CHDC have certain obligations under the Americans with Disabilities Act with regard to the individuals residing at the CHDC but DENY this paragraph to the extent it fails to identify those obligations. The remaining allegations set forth in PARAGRAPH SIXTEEN (16) are DENIED.
17. PARAGRAPH SEVENTEEN (17) is a LEGAL CONCLUSION to which no responsive pleading is required. To the extent that a response is deemed to be necessary. Defendants ADMIT that those Board members and other State officials who operate the CHDC have certain obligations under the Individuals with Disabilities Education Act with regard to the individuals residing at the CHDC but DEl\}' this paragraph to the extent it fails to identify these obligations. The remaining allegations set forth in PARAGRAPH SEVENTEEN (17) are DENIED.
18. PARAGRAPH EIGHTEEN (18) is ADMITTED in part and DENIED in part. Defendants ADMIT that those Board members and other State officials who operate the CHDC act under color of state law in providing care and services to individuals who reside at the CHDC Defendants DENY that those Board members and other State officials who operate the CHDC have "failed to act" to the extent that this is meant to imply any failure to act when required by law. The remaining allegations set forth in PARAGRAPH EIGHTEEN (18) are DENIED.
4

Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 5 of 10

19. PARAGRAPH NINETEEN (19) is DENIED as stated. Defendants ADMIT

that individuals who receive services at CHDC have developmental disabilities that require

treatment. supports. and services: Defendants DEl'"'Y that these individuals reside at CHDC

because Defendants determined that they were developmentally disabled. The reasons these

individuals reside at CHDC are more numerous and diverse than any ofthe Defendants just

making such a determination.

20.-26. PARAGRAPHS T'VENTY (20) THROUGH TWENTY-SIX (26) are

DENIED.

27. In response to PARAGRAPH TWENTY-SEVEN (27). Defendants incorporate

herein by reference as though fully set forth their answers to paragraphs thirteen (13) through

twenty-six (26) above.

28.-29. PARAGRAPHS TWENTY-EIGHT (28) AND T'VENTY-NINE (29) are

DENIED. 30.

In response to P ARAGR~PH THIRTY (30), Defendants incorporate herein by

reference as though fully set forth their answers to paragraphs thirteen (13) through twenty-six

(26) above.

31.-32. PARAGRAPHS THIRTY-ONE (31) AND THIRTY-TWO (32) are DENIED.

33. In response to PARAGRAPH THIRTY-THREE (33), Defendants incorporate

herein by reference as though fully set forth the answers to paragraphs thirteen (13) through

twenty-six (26) above.

34.-35. PARAGRAPHS TIDRTY-FOUR (34) AND THIRTY- FIVE (35) are

DENIED.

5

Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 6 of 10
36. PARAGRAPH THIRTY-SIX (36) is a LEGAL CONCLUSION to which no responsive pleading is required. To the extent that a response is deemed to be necessary. Defendants DEl\TY that the Plaintiff is entitled to seek equitable or declaratory relief under the circumstances of this case.
37. Defendants specifically DENY that the Plaintiff is entitled to any of the relief requested in the Complaint.
38. Defendants further note that they are not admitting any allegation in any paragraph of the Complaint unless they have specifically so stated.
AFFIRMATIVE DEFENSES First Affirmative Defense - Answer 1. As their First Affirmative Defense, Defendants incorporate their Answer by reference as though fully set forth.
Second Affirmative Defense - Standing - Failure To Meet Statuton' Preconditions 2. As their Second Affirmative Defense, Defendants state:
a. The Plaintiff has never provided proper notification as required by 42 U.s.c. § 1997c(b)(A)(i) as to ..the alleged conditions which deprive right~, privileges, or immunities secured or protected by the Constitution or laws ofthe United States and the alleged pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities."
b. The Plaintiff has failed to provide "the supporting facts giving rise to the alleged conditions. including the dates and time period" as required by 42 U.s.C § 1997c (b)(A)(ii).
6

Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 7 of 10

c. The Plaintiff has failed to provide a description of "'the minimum

measures which the Attorney General believes may remedy the alleged conditions and the

alleged pattern or practice of resistance"" as required by 42 U.S.c. § 1997c(b)(A)(iii).

d. The Plaintiff has failed to comply with preconditions required by CRIPA

before filing the Complaint. 42 USc. § 1997c.

Third Affirmative Defense - No StatutorY Violation

3. As their Third Affirmative Defense. Defendants state:

a.

The Plaintiff cannot establish grievous harm resulting from a pattern or

practice involving flagrant or egregious conditions. 42 USc. § 1997c.

b. The Plaintiff cannot demonstrate facts to support a claim under the Civil

Rights oflnstitutionalized Persons Act 42 USc. §§ 1997-1997j.

Fourth Affirmative Defense - Professional Judgment

4. As their Fourth Affirmative Defense. Defendants state:

a.

Defendants' treating professionals have exercised professional judgment

and have not substantially departed from professionally accepted standards in rendering care.

treatment and training to the residents at CHDC.

b.

The Plaintiff cannot es~ablish facts to support a constitutional deprivation.

Fifth Affirmative Defense - Substantial Performance 5. As their Fifth Affirmative Defense, Defendants state that their obligations to the putative class have been substantially performed in accordance with existing law. Only a failure of a state agency to comply substantially will subject it to liability.

7

Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 8 of 10
Sixth Affirmative Defense - Standing - No Actual Injurv 6. As their Sixth Affinnative Defense. Defendants state that. none of the residents at CHDC has suffered an actual or threatened injury caused by and resulting from the putatively illegal conduct of Defendants.
Seventh Affirmative Defense - Compliance With Applicable Federal Regulations 7. CHDC has passed all surveys by the Centers for Medicare and Medicaid Services ("CMS") and has remained eligible for federal financial participation. See 42 C.F.R. Part 483, Subpart L Sections 483.400-483.480. CHDC has substantially complied with all applicable federal regulations for intennediate care facilities for persons with mental retardation. CHDC meets or exceeds all accepted professional standards.
Eight Affirmative Defense - Accreditation By CARF 8. CHDC is fully accredited by the Commission on Accreditation of Rehabilitation Facilities ("CARF"). The requirements used by CARF in accrediting facilities exceed accepted professional standards. CHDC exceeds accepted professional standards.
Ninth Affirmative Defense - Failure To State A Claim - Eleventh Amendment Immunity
9. As' their Ninth Affirmative Defense, Defendants state that Plaintiff has no right 0 declaratory or injunctive relief as a result of any alleged violations ofthe Constitution of the United States, applicable federal law, or applicable federal regulation. and the litigation of such claims in the federal courts against the State of Arkansas is barred by the Eleventh Amendment ofthe United States Constitution.
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Tenth Affirmative Defense - Qualified Immunitv 10. As their Tenth Affirmative Defense. Defendants state that they are entitled to qualified immunity.
Eleventh Affirmative Defense - Fundamental Alteration 11. As their Eleventh Affirmative Defense. Defendants state that the relief proposed by the Plaintiff would constitute a fundamental alteration of the state system ofproviding services to persons with developmental disabilities. The Plaintiff is barred by law from requiring a fundamental alteration.
Twelfth Affirmative Defense - Control of the CHDC 12. Because the Board of Developmental Disabilities Services is charged with operating the CHDC and providing services and supports to individuals who reside at the CHDC except to the extent that it has delegated its authority to the Director of Developmental Disabilities Services (see Ark. Code Ann. § 20-48-401 et seq.) , the State of A<rkansas, Governor Mike Beebe, and John Selig, who are not authorized to control the care and services provided at the CHDC. are not proper parties in this litigation.
Thirteenth Affirmative Defense - Failure To State A Claim 13. As their Thirteenth Affirmative Defense, Defendants state that Plaintiff has failed to state a claim upon which relief can be granted. WHEREFORE, Defendants respectfully request that that the Complaint be dismissed in its entirety, that judgment be entered in their favor. and all other reliefthat is just and proper.
Respectfully submitted,
9

Case 4:09-cv-00033-WRW Document 4 Filed 02/17/2009 Page 10 of 10
DUSTIN McDANIEL Attorney General
By: /si Lori Freno. Senior Assistant Attornev General Bar Number 97042 Attorneys for Defendants Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock. AR 72201 Phone: (SOl) 682-1314 E-mail: lori.freno(larkansasag.L!o\·
CERTIFICATE OF SERVICE
I hereby certify that on February 17.2009. I electronically filed the foregoing with the Clerk of Courts using the CM/ECF system. which shall send notification of such filing to the following:
Arethea Coles. Esq.
arcth(;a.coJes/(I~usdoi .gOY
Benjamin Tayloe, Jr., Esq. benjamin.tav joeilmsdoj.2:o\
Christopher Cheng, Esq.
christopher.cheng~ausdoj.gO\
Jacqueline Cuncannan. Esq. jacqueJ ine .cuncannana usdoi.eov
Kerry Krentler Dean. Esq.
kerf'. .k.dean(cl:.usdo i. go\'
Richard Pence. Jr.. Esq. richard.penceq;usdoi .go\'
There are no parties to be notified manually.
lsi Lori L. Freno LORI L. FRENO
10

 
 Case 4:09-cv-00033-WRW Document 1 Filed 01/16/2009 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE JA

EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

8y:
~~~-

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF ARKANSAS;

)

THE HONORABLE MIKE BEEBE,

)

Governor of the State of Arkansas, )

in hls official capacity only;

)

JOHN M. SELIG, Director of the

)

Arkansas Department of

)

Human Services, in his

)

official capacity only;

)

J1\fvlES C. GREEN, Ph. D,

)

Director of the Arkansas Division )

of Developmental Disabilities

)

Services, in his official

)

capacity onlYi CALVIN PRICE,

)

Superintendent of the Conway Human )

Development Center, in his

)

official capacity only,

)

)

Defendants.

)

)

CASE NO. CV- t;:O?e"Ooa3~
COMPLAINT FOR:
1. VIOLATIONS OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION;
2. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT;
3. VIOLATIONS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

OI.I~~- This case assigned 10

and to Magistrate Judge

:

----------------------------------)

COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff"), by its undersigned attorneys, hereby alleges upon information and belief:
1. The Attorney General files this Complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (2000), to enjoin the named Defendants from egregiously and flagrantly depriving

Case 409-cv-00033-WRW Document 1 Filed 01/16/2009 Page 2 of 12
-2-
individuals housed in Conway Human Development Center (the "Center") of rights, privileges, or immunities secured and protected by the Constitution and laws of the United States.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345 (2000). 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 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 Arkansas is proper pursuant to 28 U.S.C. § 1391 (2000).
DEFENDANTS 6. Defendant State of Arkansas owns and operates the Center, and as such has responsibility for the services and supports provided to residents at the Center. 7. The Center is a State facility for individuals with developmental disabilities. 8. Defendant Mike Beebe is the Governor of the State of Arkansas, and in that capacity, he has responsibility for the operation of the Center.

Case 409-cv-00033-WRW Document 1 Filed 01/16/2009 Page 3 of 12
-3-
9. Defendant John M. Selig is the Director of the Department of Human Services, which has responsibility for overseeing the operation of the Center.
10. Defendant Dr. James C. Green is the Director of the Division of Developmental Disabilities Services, which has responsibility for overseeing the .operation of the Center.
11. Defendant Calvin Price is the Superintendent of the Center.
12. The individual Defendants named in paragraphs 8 through 11 are officers of the State of Arkansas and are sued in their official capacity only.
FACTUAL ALLEGATIONS 13. Defendants are legally responsible, in whole or in part, for the operation of the Center and for the health and safety of the persons residing in the Center. 14. The Center is an institution within the meaning of 42 U.S.C. §§ 1997(1). The Center provides care to individuals with developmental disabilities. 15. Defendants are obligated to operate the Center in a manner that does not infringe upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of individuals residing at the Center.

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16. Defendants are obligated to provide treatment, supports, and services to individuals residing in the Center consistent with the Americans with Disabilities Act and implementing regulations. 42 U.S.C. §§ 12101-12213; 28 C.F.R. pt. 35 (2006).
17. Also residing at the Center are persons considered a "child with a disabilityU under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1401 (3) (A) (i) and 3 (A) (ii) (West 2000 & Supp. 2006), and Defendants are obligated to provide such persons a free and appropriate public education in the least restrictive setting, with necessary supports and services consistent with the IDEA and implementing regulations. 20 U.S.C.A. §§ 1400-1482i 32 C.F.R. pt. 300 (2006).
18. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
19. Individuals reside at the Center because they have been determined by Defendants to have developmental disabilities requiring treatment, supports, and services.
20. Defendants have failed and are continuing to fail to provide reasonably safe conditions and to ensure the reasonable safety and personal security of the Center residents.
21. Defendants have failed and are continuing to fail to provide the Center residents with that level of habilitation and training, including behavioral and related training programs,

Case 4:09-cv-00033-WRW Document 1 Filed 01/16/2009 Page 5 of 12
- 5necessary to protect the residents' liberty interests and to ensure their safety and freedom from undue or unreasonable restraint.
22. Defendants have failed and are continuing to fail to ensure that restraints are administered to residents by appropriately qualified professionals in keeping with accepted professional standards, and are not used as punishment, in lieu of treatment, or for the convenience of staff. Defendants have failed and are continuing to fail to supervise adequately residents in restraints to protect them from harm.
23. The Center's treatment, supports, and services substantially depart from generally accepted professional standards of care, thereby exposing individuals residing in the Center to significant risk and, in some cases, to actual harm.
24. The Center's treatment, supports, and services substantially depart from generally accepted professional standards of care in the following specific respects, among others:
a. the provision of adequate psychological, and behavioral services;
b. the provision of adequate medical, neurological, and nursing services;
c. the provision of adequate psychiatric services;

Case 409-cv-00033-WRW Document 1 Filed 01/16/2009 Page 6 of 12
-6d. the provision of adequate habilitation and therapy
services, including physical therapy, occupational therapy, speech and language therapy, and other forms of therapy, physical management, nutritional services and related services; and e. the provision of adequate protections from harm. 25. Defendants have failed and are continuing to fail to adequately assess individuals residing in the Center to ascertain whether these individuals are receiving adequate treatment, supports, and services in the most integrated setting appropriate for their individual needs; to ensure that those individuals whom professionals determine should be placed in the community, and who do not oppose such placement, are placed there; and to ensure that the Center's residents are served in the most integrated setting appropriate for each resident's individual needs; 26. Defendants have failed and are continuing to fail to ensure that individuals with disabilities are adequately evaluated and provided the necessary supports and services to receive a free and appropriate public education in the least restrictive environment as required by United States laws and regulations.

Case 409-cv-00033-WRW Document 1 Filed 01/16/2009 Page 7 of 12
- 7VIOLATIONS ALLEGED
COUNT ONE: Violations of the Due Process Protections of the Fourteenth
Amendment to the United States Constitution 27. The United States incorporates by reference the
allegations set forth in paragraphs 13 through 26 as if fully set forth herein.
28. The egregious and flagrant acts and omissions alleged in paragraphs 13 througH 26 constitute a pattern or practice that violates the federal rights, as protected by the Fourteenth Amendn~ent to the Constitution of the United States and by other federal law, of individuals residing in the Center.
29. Unless restrained by this Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraphs 13 through 26 that deprive the Center's residents of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.
COUNT TWO: Violations of the Americans with Disabilities Act 30. The United States incorporates by reference the allegations set forth in paragraphs 13 through 26 as if fully set forth herein.

Case 409-cv-00033-WRW Document 1 Filed 01/16/2009 Page 8 of 12
-831. The egregious and flagrant acts and omissions alleged in paragraph 26 violate the ADA and implementing regulations. 42 U.S.C. §§ 12101-12213, 28 C.F.R. pt. 35. 32. Unless restrained by this Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraphs 13 through 26 that deprive the Center's residents of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.
COUNT THREE: Violations of the Individuals with Disabilities Education Act
33. The United States incorporates by reference the allegations set forth in paragraphs 13 through 26 as if fully set forth herein.
34. The acts and omissions alleged in paragraphs 13 through 26 violate the IDEA and implementing regulations. 20 U.S.C.A. §§ 1400-1482; 32 C.F.R. pt. 300.
35. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 13 through 26 that deprive residents of the Center of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.

Case 409-cv-00033-VVRVV Document 1 Filed 01/16/2009 Page 9 of 12
- 9PRAYER FOR RELIEF 36. The Attorney General is authorized under 42 U.S.C. § 1997a to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order: a. Permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 13 through 26 above, and that this Court require Defendants to take such actions as will ensure lawful conditions of institutionalization are afforded to residents of the Center, including the provision of adequate treatment in the most integrated setting appropriate to their individualized needs; b. Declaring that the acts, omissions, and practices set forth in paragraphs 13 through 26 above constitute a pattern or practice of resistance to Center residents' rights, privileges, or immunities secured or protected by the constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United States; and

Case 409-cv-00033-WRW Document 1 Filed 01/16/2009 Page 10 of 12
- 10 c. Granting such other and further equitable relief as the
Court may deem just and proper.
d,
Attorney General of the United States
~G~~ Acting Assistant Attorney General Civil Rights Division
Section
LOE, JR. Speci Counsel CHRISTOPHER N. CHENG JACQUELINE K. CUNCANNAN ARETHEA A. COLES KERRY KRENTLER Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 514-6255 ( 2 02 ) 514 - 6 903 (fax )

Case 4:09-cv-00033-WRW Document 1 Filed 01/16/2009 Page 11 of 12
- 11 -
rney of Arkansas
Little Rock, AR 72201 (501) 340-2626 richard.pence@usdoj.gov

, \

Ca?8 409-cv~00033-WRW Document 1 Filed 01/16/2009 Page 12 of 12

Ql)ffi(~ llf t~e 1\ttortlCl1 ~~ncrul
lVIngl,ingtutt, lB. QT. 20.5;30

CERTIFICATE OF THE ATTORNEY GENERAL
I, MICHAEL B. MUKASEY, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. State of Arkansas, I have complied with all subsections of 42 U.S.C. § 1997b(a) (1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a) (2). I further certify, pursuant to 42 U.S.C. § 1997b(a) (3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.
In addition, I certify that I have the "reasonable cause to believe,u set forth in 42 U.S.C. § 1997a, to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997 have been met.
Pursuant to 42 U.S.C. § 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 Washington,

~~~__~__~________ , 2008, at

Attorney General of the United States 42 U.S.C. § 1997

 
 Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 1 of 51

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

)

v.

)

)

STATE OF ARKANSAS et al.;

)

)

Defendants.

)

)

)

__________________________________________)

CIVIL ACTION NO: 4:09-CV-00033-JLH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNITED STATES’ MOTION FOR PRELIMINARY
INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65, the United States moves the

Court for a preliminary injunction based on the imminent and serious threat of

harm to the life, health, safety, and liberty of the individuals residing at the

Conway Human Development Center (“CHDC”). The State of Arkansas (“State”)

fails to serve residents in the most integrated setting appropriate to their needs in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213,

and exposes residents to death and injury as a result of unconstitutional medication

management and restraint practices.

In this Motion, the United States seeks to halt all further admissions of

children to CHDC in order to mitigate the irreparable harm caused by unlawful

Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 2 of 51
institutionalization until such time as this matter can be fully resolved at trial and seeks to ensure that all children currently institutionalized at CHDC are permitted to receive services in the most integrated setting. The United States also seeks immediate relief for all current residents from CHDC’s most dangerous conditions, specifically, its medication management and restraint practices.
Hundreds of individuals are needlessly institutionalized at CHDC. The vast majority of these individuals were first admitted to CHDC as children several decades ago. In fact, there is substantial evidence to show that, from the moment an individual enters CHDC, the chances of release to a more integrated setting severely diminish, particularly for those who first enter as children.
Once admitted to CHDC, residents are likely to die at a very young age compared to residents in similar institutions. In fact, a CHDC resident is more likely to die than be discharged to a more integrated setting. The evidence also shows that CHDC fails to properly administer and monitor powerful psychotropic medications. There is also substantial evidence that CHDC inappropriately and excessively relies on severely restrictive, outdated types of restraints to control its residents.
Immediate relief is necessary to stop ongoing, severe, and irreparable harm. That relief must target the conditions at CHDC that place all residents at the most imminent risk – conditions that have led to death, organ failure, and exposure to lethal side effects of medication and have exposed individuals to needless and
2

Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 3 of 51
harmful restraints–while requiring that the State ensure that no more of its youngest and most vulnerable citizens are exposed to this unsafe and inappropriately segregated institutional environment.
I. FACTUAL BACKGROUND The United States notified the State of its intent to investigate conditions at CHDC pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, on November 8, 2002. On April 21, 2004, the United States issued a 50-page letter of findings regarding CHDC, which concluded that there were significant and widespread deficiencies in the conditions and care at CHDC, in violation of both the United States Constitution and federal law. See Exhibit 1 (Letter dated April 21, 2004, from then-Assistant Attorney General R. Alexander Acosta to then-Governor Mike Huckabee) at 2. For several years the United States attempted to resolve the investigation of CHDC outside of litigation. Those efforts were unsuccessful, and the United States filed this lawsuit on January 16, 2009. Since the filing of its Complaint, the United States has conducted extensive discovery through interrogatories, requests for production of documents, and facility tours. The information collected through discovery to date provides sufficient evidence to demonstrate that residents face increasing and grave risk of harm with each day that deficiencies are ignored. Accordingly, the United States files this Motion to obtain narrow, preliminary relief aimed at preventing further harm caused by CHDC’s most egregious deficiencies.
3

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A. Hundreds of Individuals Remain Inappropriately Institutionalized at CHDC.
CHDC is a large, congregate facility, certified as an “Intermediate Care Facility for the Mentally Retarded” (ICF/MR) that houses approximately 510 individuals with developmental disabilities. Exhibit 2 (Roster of CHDC Residents, CON-US-59969-59993).1 CHDC has been in operation since 1959, when it opened its doors as the Arkansas Children’s Colony. “About the Conway Human Development Center,” available at http://www.chdconline.com (“About Us”) (last visited March 9, 2010). It is the oldest and largest of Arkansas’s six residential facilities for individuals with developmental disabilities. Id. CHDC’s residents range from eight to seventy-three years old. Exhibit 2. Residents are grouped into one of five “teams” based on CHDC’s assessment of their skill level and degree of physical and intellectual disability. http://www.chdconline.com (“About Us”). Each team has its own administrative structure and “team leader.”
The CHDC complex is a “self-contained community” that offers its more than 500 residents with disabilities few opportunities to live alongside of, or experience life with, people without disabilities. Exhibit 3 (Declaration of Toni Richardson) at 2-3. The living units at CHDC are communal, and most have dormitory style bedrooms, some with as many as ten beds in one room. Id. at 3. Food is delivered

1

All Bates labeled documents used as exhibits to this Motion were produced by

Defendants in response to the United States’ Requests for Production of Documents

in this case.

4

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to each unit from a central kitchen and typically plated by the unit staff. Id. There is a public address system in each residence that announces certain times of day. Exhibit 4 (Deposition of Angela Green) at 131:23-25, 132:1-10. Fewer than twenty people leave the CHDC grounds for day programs or employment. Exhibit 3 at 3.
CHDC’s residents tend to come in as children and stay for a lifetime. In fact, of the 512 people residing at CHDC as of June 2009, more than 80% were admitted to CHDC as children under the age of 18, and more than a third were admitted before the age of 10. Exhibit 2. Of those children admitted before they were 18 years old, 68% have been living at CHDC for more than 30 years. Id. Of those children admitted before they were 10 years old, 83% have been at CHDC for more than 30 years. Id.
Between June 1, 2007, and October 1, 2009, a resident at CHDC was more likely to die at the facility than to be discharged to a more integrated setting. See Exhibit 5 (Treatment Records of CHDC Residents Who Have Died, CON-US60013.001-60013.018); Exhibit 6 (List of Discharged CHDC Residents, US-CON-A46190-46193). Furthermore, CHDC residents die at the strikingly young age of 46.5 years. Exhibit 7 (Declaration of Edwin Mikkelson) at 8. According to comparative studies, 72 years of age is the approximate normal life span for individuals with developmental disabilities who live in an institution, a quarter of a century longer than residents of CHDC. Id.
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CHDC has an unusually high number of school-aged residents.2 There are now approximately 50 children at CHDC,3 about 10% of CHDC’s total population and about 40% more than at the time of DOJ’s CRIPA investigation. Exhibit 2. In contrast, of the remaining states operating large, public institutions for persons with intellectual and developmental disabilities as of June 30, 2008, almost 20% had no children or adolescents in residence whatsoever, and over 60% served no children under age 15 in such institutions. Exhibit 8 (Declaration of Robert Gettings) at 2-3.
During the last two years, children have comprised more than half of all new admissions to CHDC. Exhibit 4 at 84:21-25, 85:1-8. Approximately 18 of the children are under the age of 16, and at least one is only eight years old. Exhibit 2.
Any special education instruction that CHDC school-aged residents receive is provided in classrooms located on the grounds of the facility, isolated from their peers without disabilities. Exhibit 9 (Declaration of Susan Thibadeau) at 2-3. Thus, CHDC children have no opportunity to interact either socially or

2

By “school-aged residents,” the United States is referring to all residents who

qualify for special education services under the IDEA which, in the State of

Arkansas, includes residents up to the age of 21. A.C.A § 6-41-203. For purposes of

this Motion, the United States refers to all such residents as “children.”

3

This number is based on the most recent roster of CHDC that the State has

provided to the United States. Due to ongoing admissions and discharges at CHDC,

including residents at CHDC temporarily for respite care, it should be considered

approximate.

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academically with students without disabilities. Id.; Exhibit 10 (Deposition of Tamara Hill) at 93:2-20; Exhibit 11 (Deposition of Susan Milum) at 45:13-22. Further, none of the CHDC children receives a full day of special education services or adequate transition plans. Exhibit 9 at 3.
1. Arkansas Has No Plan For Moving Institutionalized Individuals To The Most Integrated Setting.
In March 2003, the Governor's Integrated Services Task Force (GIST) issued the State’s “Olmstead Plan.”4 According to its terms, Arkansas’ Olmstead Plan applies to all Arkansans with significant long term support needs. Exhibit 12 at 13. In its Olmstead Plan, the State acknowledges that it is not doing enough to divert admissions to institutions, pointing out that “[o]nce a person has made the necessary lifestyle changes to enter an institution, he or she may find that it is more difficult to return home than it would have been to remain in the community in the first place.” Exhibit 12 at 22; Exhibit 8 at 9. However, the State is not taking any meaningful action to end unnecessary segregation of individuals with disabilities, nor even using its Olmstead Plan as a working document.5 Exhibit 8 at

4

Exhibit 12 (The Olmstead Plan in Arkansas: A Catalyst for Collaboration

and Change; The Governor's Integrated Services Task Force and Arkansas

Department of Human Services: March 31, 2003, available at

http://www.daas.ar.gov/organizations_olmstead_plan_doc.html (Last visited

February 4, 2010) (the “Olmstead Plan”).

5

The State’s lack of current efforts to end unnecessary segregation is

particularly puzzling in light of testimony by the Assistant Director of DDS’ Waiver

Unit. Ms. Cromer testified that if release was staggered to give providers time to

7

Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 8 of 51
7; Exhibit 13 (Deposition of Glenda Higgs, DHS Program Administrator for Quality Assurance at 18:11-25; Exhibit 14 (Deposition of Carole Cromer, Division of Disabilities Services (“DDS”), Assistant Director, Waiver Unit) at 77:2-6; Exhibit 15 (Deposition of Shelley Lee, DDS Assistant Director, Quality Assurance Unit) at 27:14-25, 28:1-7; Exhibit 4 at 75:23-25, 76:1-8. Instead, the State is actively increasing its capacity for institutionalizing children. The State has an action plan for expanding CHDC's children's program which includes increasing the housing available at CHDC for school-aged children. Exhibit 16 (Attachment to email from Shelley Lee to Calvin Price, et al., dated March 6, 2009); Exhibit 17 (Attachment to email from Traci Harris to Calvin Price, et al., dated July 11, 2008). At the same time, the State is expanding its state-wide institutional system by building a new 16-bed facility for children with developmental disabilities and mental illness on the grounds of the Southeast Arkansas Human Developmental Center. Exhibit 18 (Email from Brenda Mercer to Susanne Ballard, et al., dated April 21, 2009).
In fact, in a report released earlier this year, United Cerebral Palsy, Inc. gave Arkansas an overall ranking of second to last among the fifty states and the District of Columbia for supporting community-inclusive lives for individuals with intellectual and developmental disabilities who receive Medicaid-funded services. Exhibit 8 at 3-4. Indeed, the number of individuals with developmental disabilities
hire appropriate staff, then Arkansas community providers could absorb the 1,334 people on the waiting list for ACS waiver services. Exhibit 14 at 68:3-13.
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who are waiting to receive community-based services is on the rise in Arkansas, with over 1,300 currently waiting to receive services through the Centers for Medicaid and Medicare Services (CMS) Alternative Community Services waiver program (“ACS waiver program or services”).6 Exhibit 14 at 49:24-25, 50:1-6. The current wait time in Arkansas for people with developmental disabilities to receive ACS waiver services is approximately two and a half years. Exhibit 14 at 49:12-23; Exhibit 15 at 57:24-25, 58:1-2. According to the State’s 2008 waiver renewal request, the State has no plan to increase the number of waiver slots until, at the earliest, 2014. Exhibit 8 at 10. The current average annual cost for an individual to participate in the State’s waiver program is $38,000, while the average annual cost of placement at an ICF/MR is roughly $68,000.7 Exhibit 14 at 28:17-25, 29:1-14.

6

This is a third of the total number (3,988) of waiver slots available for

persons with developmental disabilities in the entire state of Arkansas. Exhibit 8 at

10.

7

Nationwide, Arkansas had the lowest weighed average per diem

expenditures ($271.27) in its publicly-operated I/DD residential facilities during FY

2007. The State’s average weighted per diem was 78 percent below the national

average ($484.20) for facilities in all reporting states that year. Average annual per

participant expenditures on Medicaid home and community-based waiver services

in Arkansas during FY 2008 ($28,977.83) was 50 percent below the average per

participant expenditure level in all states ($43,464.29). In FY 2008, the average per

resident expenditure on home and community based services in Arkansas ($34.01)

was less than one-half the median per resident expenditure in all states ($73.37).

The state ranked 46th among the states and the District of Columbia in FY 2008 in

waiver expenditures per resident. Exhibit 8 at 3.

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2. CHDC’s Treatment Approach Guarantees That Most Residents Will Spend Their Entire Lives In A Segregated Institution.
The United States’ expert estimates that with appropriate supports, at least half of the over 510 CHDC residents are appropriate for a more integrated setting now. Exhibit 3 at 8-9. Yet, the State has identified only five current CHDC residents as appropriate for community integration via the ACS waiver program. Exhibit 19 (List of Residents Recommended for Waiver, CON-US-0059104). This dramatic discrepancy reflects a pervasive institutional bias at CHDC, and this bias drives CHDC’s approach to treatment planning. In fact, the staff at CHDC know little to nothing about community-based treatment. Exhibit 3 at 4-7. For instance, the CHDC employee identified by the State as the person most knowledgeable about community placement testified to her belief that CHDC is an “integrated setting,” because “[i]t is a place that can meet individuals’ needs, it allows them to have training, social interaction, allows them to go, do.” Exhibit 4 at 132:10-14.
Not surprisingly, CHDC’s assessments of residents’ appropriateness for a more integrated setting are terribly inaccurate. This is evident in the plans of care, or “Individual Program Plans” (“IPPs”), that CHDC staff develop for residents. Instead of focusing on what supports residents require to live meaningful lives in the most integrated setting appropriate to their needs, CHDC’s IPPs identify arbitrary skills, such as tooth brushing or matching clothing, as prerequisites for
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placement, even though the ability to accomplish these tasks has no bearing on whether an individual is appropriate for community placement. Exhibit 3 at 6-7.
In fact, typically, the only way that community placement is meaningfully considered at CHDC is if an individual or guardian proactively expresses an interest in pursuing community-based treatment. Id. at 4-5; Exhibit 4 at 151:1-12. Yet, despite that the onus is on residents and their guardians to initiate pursuit of community placement, guardians are provided very little meaningful information with which to make this important decision. See Exhibit 20 (Defendant’s Response to United States’ First Request For Production of Documents, No. 36, CON-US0018120); Exhibit 4 at 124:6-9.
In the meantime, while residents remain inappropriately placed at CHDC, they are exposed to dangerous and unconstitutional conditions, as set forth below. In fact, in some cases, the environmental conditions inherent in institutional living may lead to residents’ unnecessary exposure to potentially harmful medication side effects and physical restraints. See infra sections III.B.2 and III.B.4.
B. CHDC’s Medication Management Practices Place All Residents At Risk of Avoidable Harm.
In recent years, at least three CHDC residents have died, suffered possible permanent organ damage, or been at risk of hemorrhaging to death because of the psychotropic medications administered to them at CHDC. At least two residents were hospitalized for Lithium poisoning, one as recently as October 2009. Exhibit 7
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Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 12 of 51
at 4; Exhibit 21 (Hospital Admissions List dated November 30, 2009 US-CON-A0045650-662) at 5-6. Many other CHDC residents are at risk of harm from side effects, but have not been identified as such by CHDC or its treating clinicians. Exhibit 7 at 4-5; Exhibit 22 (Declaration of Jodie Holloway) at 3-5. Medical charts and direct observation show indications of involuntary movements, abnormal organ function tests, and dangerous blood levels associated with side effects of psychotropic medication which have gone undetected or untreated by CHDC or its treating clinicians. Exhibit 22 at 11, 13-14; Exhibit 7 at 4-5. Currently, CHDC has no effective system to detect or treat these serious side effects. Exhibit 7 at 3-4.
Psychotropic medication is widely prescribed at CHDC; approximately 55% of CHDC residents currently receive one or more psychotropic medications, and over 80% of the children at CHDC receive psychotropics. Exhibit 23 (CHDC Residents on Psychotropic Medications, US-CON-A 17839-17939). A “significant portion” of CHDC’s over 500 residents have received “first-generation” antipsychotics for several years during their lives. Exhibit 24 (Deposition of Douglas Callahan) at 195:10-25, 196:1-10.
First-generation antipsychotics are an older class of medication associated with a significant risk of serious side effects, including tardive dyskinesia (a movement disorder characterized by frequent, repetitive, involuntary movements of the lips, tongue, jaw, face, trunk, and/or limbs). Exhibit 22 at 4. Further, at least fifty CHDC residents currently receive other medications that can cause tardive
12

Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 13 of 51
dyskinesia or other movement disorders. Id. at 4, 6. Through medical record review and brief observations of CHDC residents, the United States’ experts identified residents displaying symptoms consistent with tardive dyskinesia. Id. at 7. Yet, in CHDC’s roster of diagnoses and medications, and in the numerous CHDC medical records reviewed by the United States’ experts, only a few residents were identified as having a tardive dyskinesia diagnosis or as warranting further assessment to rule out tardive dyskinesia. Id. at 6-7.
CHDC employs one consulting psychiatrist, Dr. Douglas Callahan, to treat these residents, including children. Exhibit 7 at 5-6. Although he admits that children at CHDC have complicated diagnoses, CHDC’s consulting psychiatrist has no specialized training or accreditation in child psychiatry. Exhibit 24 at 33:16-18; 34:10-12; 237:1-10. Moreover, CHDC’s consulting psychiatrist is not subject to any clinical oversight. Exhibit 25 (Deposition of Denise Thomas) at 40:18-25, 41:1-2.
CHDC’s consulting psychiatrist spends approximately 2.4 hours per year with each of the 278 CHDC residents he follows. Exhibit 7 at 3, 6. The vast majority of the consulting psychiatrist’s evaluations take place in CHDC's medical building rather than on the resident’s living units and do not include the resident’s treatment teams. Id. at 6.
Clinical staff receive no side effects training or information other than a generic description of the effects when a new medication is prescribed. Id. at 5. CHDC’s consulting psychiatrist does not meet with treatment teams to advise or
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educate them on a resident’s vulnerability or experience with the side effects of his or her medication. Id. at 6. Moreover, CHDC’s psychiatric consultation notes routinely fail to identify possible medication side effects, adverse drug reactions, or harmful drug interactions. Id.
C. CHDC Uses Harmful and Unnecessary Methods of Restraint. At CHDC, the widespread use of mechanical restraints is permitted as part of a highly restrictive scheme that places citizens with developmental disabilities at grave risk of harm. See Exhibit 26 (Declaration of Johnny Matson) at 4; Exhibit 27 (Declaration of Ramasamy Manikam) at 4-5. When children are subjected to such restraints, the abuses are particularly unconscionable. Id. CHDC utilizes 41 different forms of mechanical restraint, including straitjackets, “restraint chairs,” and “papoose boards.” Exhibit 26 at 4; Exhibit 27 at 4. The use of straitjackets is itself highly troubling, as straitjackets have generally been eliminated from use in most facilities similar to CHDC for years. Exhibit 26 at 4. Similarly, the “restraint chair” and “papoose board” are clinically indefensible when used at CHDC. The “restraint chair” is a chair that allows staff to completely immobilize a resident by strapping him in a seat with large padded forms. Id., Exhibit 27 at 4-5. The “papoose board” is a padded board to which a resident is horizontally strapped such that his arms, legs, and torso are immobilized. Id. Children are not exempted from even these most restrictive mechanical restraints. See generally, Exhibit 26 at 5, 9-12.
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The frequency of restraint use is exceptionally high at CHDC. Exhibit 26 at 5; Exhibit 27 at 5. In April 2009 alone, CHDC staff utilized mechanical restraints more than 1,300 times. Id. CHDC’s Chief of Psychology has indicated that about 70-80 CHDC residents have treatment programs that include restraint use. Exhibit 26 at 5. As many as six staff at once may be involved in applying restraints to a resident. Id. The actual rate of restraint use is likely much higher than reported, however, because CHDC does not track various devices that function as mechanical restraints, such as fixed dining trays on wheelchairs, face guards, helmets, and “seat belts” on lounge chairs. Id. at 5.
II. LEGAL STANDARD In determining whether to issue a preliminary injunction, the court must consider “(1) the likelihood of success on the merits; (2) the presence or risk of irreparable harm; (3) the balancing of the harms of granting or denying an injunction; and (4) the public’s interest.” CDI Energy Services, Inc. v. West River Pumps, Inc., 567 F.3d 398, 401-02 (8th Cir. 2009) (citing Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). No single prong of the standard is determinative of whether a preliminary injunction should be issued. Dataphase at 113. Furthermore, this standard applies in cases where, as here, some of the relief sought involves compelling a party to take affirmative action. See, e.g., Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984) (“where the status quo is a condition not of rest, but of action, and the condition of
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rest . . . will cause irreparable harm, a mandatory preliminary injunction is proper.”).
III. ARGUMENT A. RESIDENTS OF CONWAY HUMAN DEVELOPMENT CENTER
ARE SUFFERING IRREPARABLE HARM. Death and permanent injury caused by failure in medical care constitutes irreparable harm. Henderson v. Bodine Aluminum, Inc. 70 F.3d 958, 961 (8th Cir. 1995) (“[P]reliminary injunctions become easier to obtain as the plaintiff faces progressively graver harm. . . . It is hard to imagine a greater harm than losing a chance for potentially life-saving medical treatment.”); Rodde v. Bonta, 357 F.3d 988, 993-94 (9th Cir. 2004) (upholding injunction to prevent “‘severe, irreparable harm’ as a result of ‘lack of access to preventive care’ and ‘medical complications . . . increased risk of death, infection, organ failure, and loss of functional ability’”). The inappropriate use of mechanical restraints causes irreparable harm. See, e.g., National Ass’n of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d 33, 45 (D.D.C. 2000) (“severe psychological and physical injuries . . . can and do result from inappropriate use of restraints”). Moreover, when “a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Charles Alan Wright, et. al. Federal Practice and Procedure § 2948.1 (2d ed. 1995) (citing Elrod v. Burns, 427 U.S. 347, 373-74 (1976); see also R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006) (“‘[A]n alleged constitutional
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Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 17 of 51
infringement will often alone constitute irreparable harm.’”) (internal citations omitted).
Long term, unnecessary segregation causes irreparable harm. See Exhibit 12 at 22 (“Once a person has made the necessary lifestyle changes to enter an institution, he or she may find that it is more difficult to return home than it would have been to remain in the community in the first place.”); Disability Advocates, Inc. v. Paterson, 653 F. Supp.2d 184, 265 (E.D.N.Y. 2009) (“[O]ne of the harms of long-term institutionalization is that it instills ‘learned helplessness,’ making it difficult for some who have been institutionalized to move to more independent settings.”).
For children who are unnecessarily segregated, the irreparable harm is particularly acute. See Exhibit 3 at 9 (“Segregating children in mostly adult populations, separating them from public schools and depriving them of regular contact with non-disabled peers, carries the potential for long-term institutionalization.”); Parham v. J.R., 442 U.S. 584, 627-28 (1979) (Brennan, J., concurring in part and dissenting in part) (“The consequences of an erroneous commitment decision are more tragic where children are involved . . . . Childhood is a particularly vulnerable time of life and children erroneously institutionalized during their formative years may bear the scars for the rest of their lives.”).
For many children at CHDC, the harmful effects of prolonged, unnecessary segregation are quite blatant. For example, in numerous CHDC IPPs, treatment
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teams justify the residents’ continued placement at CHDC by noting that the resident has lived at CHDC for “many years” and now considers CHDC “home.” In fact, some of the current residents who were children in 2002-03, at the time of the DOJ’s CRIPA investigation, have current IPPs that contain this language, even though their earlier IPPs did not expressly foreclose the possibility of an eventual transition to a more integrated setting. Compare 2002 IPP for a then-14-year-old resident (“CHDC is the least restrictive placement alternative for [the resident] at this time”) (emphasis added) with 2009 IPP (the resident “has lived at [CHDC] for many years.”);8 and 2002 IPP for a then-15-year-old resident (CHDC “is the least restrictive placement alternative known at this time.”) (emphasis added) with 2009 IPP (the resident “has lived at [CHDC] for many years.”);9 also compare 2002 IPP for a then-17-year-old resident (“A projected discharge date could not be determined due to [the resident’s] need for supervision, structure, special education and vocational training.”) with 2009 IPP (the resident “has lived at [CHDC] for several years and considers this her home.”).10 Thus, for children who are unjustifiably institutionalized, the risk of irreparable harm begins the moment they step through

8

See, Exhibit 28 (2002 IPP for then-14-year-old resident); Exhibit 29 (2009

IPP for the same resident, CON-US-304907-304928).

9

See Exhibit 30 (2002 IPP for then-15-year-old resident); Exhibit 31 (2009 IPP

for the same resident, CON-US-321981-321996).

10 See Exhibit 32 (2002 IPP for then-17-year-old-resident); Exhibit 33 (2008 IPP for the same resident, CON-US-321318-321337).

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CHDC’s doors. The lack of appropriate special education services also causes irreparable
harm. See Monahan v. State of Neb., 645 F.2d 592, 598 (8th Cir. 1981) (plaintiff had established a threat of irreparable harm sufficient to support a preliminary injunction where the plaintiff student had been making “little progress” in her thencurrent placement, and “the resulting harm to [plaintiff] was irreparable and . . . preliminary relief was appropriate to limit such harm.”); see also Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 121-22 (1st. Cir. 2003) (finding irreparable harm where school district failed to provide student with sign language interpreter because “‘at the rate at which a child develops and changes, especially one at the onset of biological adolescence . . . a few months can make a world of difference’ in harm to a child’s educational development.”) (internal citation omitted)).
B. THE UNITED STATES IS LIKELY TO PREVAIL ON THE MERITS. 1. CHDC Violates the ADA by Failing to Provide Services to Residents, Including Children, in the Most Integrated Setting Appropriate to Their Needs.
There are hundreds of CHDC residents who remain institutionalized in violation of their rights under the ADA. A disproportionate number of these are children, who comprised 50 - 80% of new admissions during each of the last five years. Exhibit 4 at 84: 21-25, 85:1-8; Exhibit 34 (CHDC Psychology Services Meeting Minutes, November 14, 2007, CON-US-0006371). This rate of
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institutionalization for children with disabilities is out of step not only with other states but also with the State’s recognition of the need to divert children from institutions by providing more services. Exhibit 8 at 3, 9; Exhibit 12 at 22. The ADA requires that the State provide services to qualified individuals with disabilities in the most integrated setting appropriate to their needs. 42 U.S.C. § 12132 (2008) (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”) and its implementing regulations, 28 C.F.R. § 35.130(d) (1998); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999). As the Supreme Court explained in Olmstead, inappropriate institutionalization “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” and “severely diminishes the everyday life activities of individuals.” Id. at 600-01.
In construing the anti-discrimination provision contained within the ADA, the Supreme Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. The Court applied the integration mandate of the regulations implementing Title II of the ADA: “‘A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.’ 28 C.F.R. § 35.130(d).” Id. at 592.
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A violation of the integration mandate is established if the institutionalized individual is “qualified” for community placement – that is, that he or she can “handle or benefit from community settings” and does not oppose community placement. Olmstead, 527 U.S. at 601-603. The state, however, may interpose a defense that community placement would “entail a ‘fundamenta[l] alter[ation]’ of [its] services and programs.” Id. at 603 (plurality opinion). The Olmstead plurality explained that a state can show a fundamental alteration by demonstrating that it has “a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.” Id. at 605-606.
The United States has a strong likelihood of succeeding on the merits of its ADA claim. First, evidence indicates that hundreds of CHDC residents can “handle or benefit from community settings.” See Olmstead, 527 U.S. 601-602; see also Exhibit 3 at 8-9 (expert assessment that “50% or more [of CHDC residents] could live in more integrated community settings.”). The State itself has acknowledged that it needs to do more to serve children with disabilities in the community. See Exhibit 12 at 22 (“More work also remains to serve school-aged children and those desiring services outside the clinic setting.”). Yet Arkansas does not have a working plan for systematically transitioning institutionalized people to the community, nor does it systematically identify or track the number and
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characteristics of CHDC individuals who might be appropriate for community placement. See Olmstead, 527 U.S. at 605-06; see also Exhibit 8 at 8 (“it is impossible to develop a credible plan for transitioning institutionalized persons to the community without first determining the number and characteristics of individuals who potentially might be impacted.”); Messier v. Southbury Training School, 562 F. Supp.2d 294, 330 (D.Conn. 2008) (a system of placing institutionalized individuals into the community only as placements happen to become available violates the ADA because a State “cannot systematically develop resources appropriate to [the institution’s] residents’ placement needs.”).
In fact, from June 1, 2007 to September 30, 2009, only eight CHDC residents were discharged to a more integrated setting, or approximately four people a year. Exhibit 6.11 Of those eight discharged individuals, only three were children. Exhibit 6; Exhibits 35-37; Exhibit 38 (Discharge Summary, April 16, 1991); Exhibit 39 (DHHS Incident Report, CON-US-0020257-0020259); Exhibit 40 (Social Work Summary, October 23, 2008, CON-US, 0180264). Furthermore, between fiscal years 2004 and 2008, new admissions and re-admissions to the State’s Human
11 Other individuals were released from CHDC during this time frame, however, these individuals were temporary residents, placed at CHDC for respite care only. Exhibit 35 (CHDC Respite Meeting, July 6, 2009, CON-US-0300636); Exhibit 36 (CHDC Children Census, CON-US-0005155-0005157); Exhibit 37 (CHDC Respite Meeting, August 17, 2009, CON-US-0302758).
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Development Centers have exceeded the number of discharges for each year except one. Exhibit 8 at 9; Exhibit 4 at 84:21-25, 85:1-8; Exhibit 6.
Moreover, as set forth above, the evidence demonstrates that hundreds of CHDC residents are appropriate for community-based treatment, notwithstanding CHDC’s failure to recognize this fact. Although Olmstead itself involved two plaintiffs whose treating professionals had determined community placement was appropriate, the integration mandate is not limited to that narrow fact setting. The regulation that creates the integration mandate says nothing about treating professionals; it simply requires services to be administered “in the most integrated setting appropriate to the needs of” the individual. 28 C.F.R. § 35.130(d). The regulation does not in any way purport to limit the evidence on which a plaintiff may rely in showing that a more integrated setting is appropriate.12 A requirement that Olmstead plaintiffs come to court armed with the recommendation of a state's
12 As the Supreme Court recognized in Olmstead, “[b]ecause the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II . . . its views warrant respect.” Olmstead, 527 U.S. at 597-98. The Court emphasized that “the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Id. (internal quotations omitted). In Olmstead, the Court relied on the Department of Justice’s position, as set forth in numerous briefs in other segregation cases, that “undue institutionalization qualifies as discrimination ‘by reason of . . . disability’” under the ADA. Id. at 598 (quoting 42 U.S.C. § 12132). As set forth below, it is the Department of Justice’s “well-reasoned view[]” based on a “body of experience and informed judgment” about the ADA and its implementing regulations that the Defendants’ current community placement practices violate both.
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treating professional would “allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Frederick L. v. Dept. of Public Welfare, 157 F. Supp.2d. 509, 540 (E.D. Pa. 2001); see also Disability Advocates, 653 F. Supp.2d at 258 (“The court does not read Olmstead as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting.”); Joseph S. v. Hagan, 561 F. Supp.2d 280, 291 (E.D.N.Y. 2008) (“[I]t is not clear whether Olmstead even requires a specific determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting or whether that just happened to be what occurred in Olmstead.”); cf. Messier, 562 F. Supp.2d at 338 (finding that inadequate professional assessments “undermine[] the integration mandate of the ADA”).
The problem with reading such a requirement into Olmstead is particularly evident here: CHDC staff are terribly ill-informed about what community-based treatment looks like, what skills are required to live in the community, or even what it means to be living in an integrated setting, yet these same staff are the “treating professionals” assessing residents’ appropriateness for community placement. Indeed, instead of focusing on what supports the resident needs in order to live a meaningful life, CHDC’s IPPs focus on “skills such as tooth brushing,
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matching clothing and other routine skills that hold little interest for the person, and . . . are not needed for community placement.” Exhibit 3 at 7. The facility’s IPPs also tend to identify stabilization of behavior as a prerequisite to moving to a more integrated setting, without adequately assessing whether environmental factors related to being in an institutional setting are causing or contributing to those behaviors. Id. To read Olmstead as requiring the State to provide treatment in a more integrated setting only when CHDC’s ill-informed staff members recognize that it is appropriate to do so would be to ignore the ADA’s integration mandate altogether. Frederick L., 157 F. Supp.2d at 540; see also Disability Advocates, 653 F. Supp.2d at 258.
The evidence of CHDC staff’s lack of accurate knowledge about communitybased treatment is overwhelming. The CHDC employee whom the State identified as most knowledgeable about community placement testified that she had no knowledge regarding what services are available in the community versus CHDC, nor did she know whether there are any daily living skills that cannot be taught in the community. Exhibit 4 at 132:15-19, 156:1-3 (“I’m not familiar with all the services that providers are able to give.”). Statements by the five team leaders likewise reveal that none have any real understanding of what services are available in the community or when a more integrated placement is appropriate for the residents they serve. Exhibit 3 at 5-6. One team leader went so far as to say
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that teams do not recommend community placement because they believe CHDC is “the best.” Id. at 6.
Statements by other staff underscore the pervasive institutional bias and widespread misinformation about community-based treatment at CHDC. For example, the United States’ expert found that “CHDC staff are of the opinion that “community programs do not provide what CHDC does for people.” See Exhibit 3 at 7 (describing a number of misunderstandings CHDC’s treatment teams have regarding skill prerequisites for community-based treatment eligibility). In fact, community providers in Arkansas are actually able to offer training on many of the skills that CHDC staff believe are prerequisites for being discharged from CHDC. Id. (discussing her visits to community providers and describing the variety of daily living skills, such as meal preparation, laundry, taking care of clothing, and tooth brushing, that are taught by these providers).
Under the circumstances set forth above, it is impossible to know whether or not any CHDC resident or guardian would oppose moving to a more integrated setting, given that none have been offered a meaningful opportunity to move to an appropriate community setting. See 28 C.F.R. pt. 35, App. A, p. 450 (1998) (“[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation.”) (emphasis added); see also Messier, 562 F. Supp.2d at 338 (stressing that “[t]he [ADA] regulations do not conceive of a resident’s option to decline community placement as a right that is to be exercised before any
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professional judgment has been brought to bear. Rather, the regulations state that ‘persons with disabilities must be provided the option of declining to accept a particular accommodation.’”).
Furthermore, CHDC does not routinely provide residents or their guardians with even basic written information, such as brochures or pamphlets, about community placement options for CHDC residents. See Exhibit 20; Exhibit 4 at 129:2-22. Nor is there a routine, organized effort by CHDC to provide training about community options to residents and guardians. See Exhibit 3 at 6-7. Unless the guardian raises the issue, the topic of community placement is discussed, if at all, by an IDT member perfunctorily, even apologetically, informing the resident’s guardian that the ACS waiver services exist, without any discussion of what that means or how it can benefit the individual. Id. at 4-5. Thus, given the scant and inaccurate information that residents and guardians are provided about community-based treatment, it is not surprising that more of them are not actively pursuing a placement in the community. Messier, 562 F. Supp.2d at 338 (“[a]n opportunity to discuss the possibility of community placement with guardians could make a substantial difference in the number of referrals for placement.”).
Finally, as other courts have recognized, Defendants cannot reasonably claim that it would be a fundamental alteration of its programs and services if compelled to comply with the ADA. See Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dept. of Public Welfare, 402 F.3d 374, 381 (3rd Cir. 2005) (“Any
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interpretation of the fundamental alteration defense that would shield a state from liability in a particular case without requiring a commitment generally to comply with the integration mandate would lead to this bizarre result.”); Townsend v. Quasim, 328 F.3d 511, 519 (9th Cir. 2003) (“[P]olicy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided.”); Long v. Benson, No. 08cv-26 (RH/WCS), 2008 WL 4571904, at *2 (N.D.Fla. Oct. 14, 2008) (noting that the State “cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.”); Messier, 562 F. Supp.2d at 339 (“[H]aving failed to learn how many class members could or should be placed in the community, the defendants failed to develop resources for placing class members.”).
Additionally, Arkansas has no “comprehensive, effectively working plan” for placing CHDC residents in “less restrictive settings.” Olmstead, 527 U.S. at 606; Exhibit 8 at 4, 7. Indeed, there is no evidence to suggest that outside of a “series of small bore initiatives,” Arkansas has made any commitment to complying with the Title II of the ADA. Id. See Pennsylvania Protection and Advocacy, 402 F.3d at 381-82 (a state agency asserting the fundamental alteration defense should “be prepared to make a commitment to action in a manner for which it can be held accountable by the courts” and should demonstrate that there is “ongoing progress
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toward community placement” under the plan); see also ARC of Washington State v. Braddock, 427 F.3d 615, 619 (9th Cir. 2005); Sanchez v. Johnson, 416 F.2d 1051, 1067 (9th Cir. 2005) (finding that a state’s commitment to deinstitutionalization should include a plan that is comprehensive, reasonable, and effective). Instead, the State is actively expanding its capacity to institutionalize children with developmental disabilities. Exhibits 16-18. In light of the scant evidence of current efforts by the State to comply with the ADA’s integration mandate, it cannot claim that the relief requested in the United States’ claim would constitute a fundamental alteration of its services and programs. See Disability Advocates, Inc. v. Paterson, 598 F. Supp.2d 289, 339 (E.D.N.Y. 2009) (“A state’s efforts to comply with the integration mandate . . . are . . . an important consideration in determining the extent to which the requested relief would be a permissible ‘reasonable modification’ or an impermissible ‘fundamental alteration.’”) (citing Martin v. Taft, 222 F.Supp.2d 940, 985-86 and n.42 (S.D. Ohio 2002)).
Finally, the State has professed its commitment to integration and compliance with the ADA’s integration mandate. See Exhibit 12 at 21 (setting as a priority the facilitation of “transitions from institutional settings to the community.”); Exhibit 41 (DDS Policy 1081: Mission Statement, CON-US-0000609) (stating Arkansas’ commitment to “[e]ngaging in statewide planning that ensures optimal and innovative growth of the Arkansas service system to meet the needs of persons [sic] with developmental disabilities and to assist such persons to achieve
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independence, productivity, and integration into the community.”). If the State is committed to integrating individuals with disabilities into the community as required under the ADA, then it should not be a fundamental alteration of its services and programs to act on that commitment. See Messier, 562 F. Supp.2d at 345 (finding the State’s fundamental alteration claim to be “entirely inconsistent with its public commitment to further enhancing a system of community placement programming, which, it claims, was already robust in early 1999.”).
2. Residents, Including Children, Are At Imminent Risk of Death and Other Grievous Harm Because of CHDC’s Medication Management Practices.
The Due Process Clause of the Fourteenth Amendment protects the constitutional rights of individuals with developmental disabilities. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Specifically, “adequate . . . medical care” is one of the “essentials” of care that a State must provide to institutionalized individuals with development disabilities. Id.; see Rennie v. Klein, 720 F.2d 266, 269 (3d Cir. 1983). Accordingly, a State violates the Due Process Clause when it provides medical care that substantially departs from professional standards. Rennie, 720 F.2d at 269; see also Morgan v. Rabun, 128 F.3d 694, 697-98 (8th Cir. 1997). In psychotropic medication cases, a factor to be considered when evaluating professional judgment is “whether and to what extent the patient will suffer harmful side effects.” Rennie, 720 F.2d at 269.
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In the last three years, CHDC residents have died, suffered possible
permanent organ damage, or been at risk of hemorrhaging to death because of the
psychotropic medications administered to them at CHDC. Exhibit 7 at 4-5. In each
of these instances, CHDC clinicians failed to recognize or treat side effects, causing
fatal and serious harm to the residents under their care.
• In July 2007, a CHDC resident died after being hospitalized from a common, preventable side effect of Haldol.13 The Haldol was itself wrongly prescribed to mask the side effects of another medication of questionable utility. No CHDC clinician ever identified or appropriately treated the side effect that killed him. Id. at 4.
• In April 2008, CHDC clinicians administered toxic levels of Lithium to an eight-year-old child and delayed providing him appropriate care, rendering him comatose, causing possible permanent kidney damage, and nearly killing him. Id. at 4-5.
• CHDC clinicians failed to recognize that a resident on Depakote was experiencing low platelet levels, a common side effect of the medication, such that, in early 2009, he required blood transfusions and was at risk of a fatal hemorrhage. Id. at 5.
Critically, there has been no systemic response at CHDC to address these
deficiencies in care and tragic outcomes. As a result, the facility’s failure to timely
address serious medication side effects continues unabated, a substantial departure
from accepted professional standards.
13 The side effect, Neuroleptic Malignant Syndrome (“NMS”), is a potentially fatal condition that requires removal from Haldol and active treatment to stops its effects. Exhibit 7 at Attachment A, Case Examples, p. 10. CHDC’s medical director admitted “there [have] been problems in the past” with NMS. Exhibit 25 at 83:1619.
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Many other CHDC residents are currently at risk of serious harm from side effects, but have not been identified as such by CHDC. CHDC’s consulting psychiatrist admits that a “significant portion” of CHDC’s over 500 residents have received typical, or “first-generation,” antipsychotics for several years during their lives. Exhibit 24 at 195:10-17, 196:9-10. These medications, and other medication that several current residents receive, can lead to tardive dyskinesia when administered for extended periods of time. Exhibit 22 at 3-4. Yet, although the United States’ experts’ noted symptoms consistent with tardive dyskinesia in residents’ records and observed such symptoms in residents themselves, only a few of these residents’ records indicated that they had been identified as warranting assessment to rule out tardive dyskinesia or had been diagnosed with this disease. Id. at 6-7. Moreover, the United States’ experts found indications of abnormal organ function tests and dangerous blood levels associated with side effects of psychotropic medication that CHDC clinicians do not detect or treat. Id. at 5, 11, 13; Exhibit 7 at 4. Further, when CHDC clinicians do detect the presence of medication side effects, they have responded by adding another – sometimes fatally dangerous – medication to suppress the side effects, rather than establishing whether the first medication is even effective in treating the underlying condition or assessing whether less harmful alternatives are available. Exhibit 7 at 5. This is a substantial departure from accepted professional standards. Id.
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Despite the immediate risks of harm from psychotropic medication, CHDC substantially departs from accepted professional standards by having no formalized system for the detection of side effects. Treatment teams receive no side effects training or information other than a generic description of the side effects when a new medication is prescribed. Exhibit 42 (Email from Carl Reddig to Kathy Gill, et al., dated February 26, 2008). CHDC’s consulting psychiatrist, whose plans of treatment are uniformly implemented by CHDC staff, does not meet with treatment teams to advise or educate them about a resident’s vulnerability to, or particular experience with, the side effects of his or her medication. Exhibit 7 at 5-6. Moreover, CHDC’s consulting psychiatrist routinely fails to identify adverse drug reactions, possible medication side effects, or harmful drug interactions, in his consultation notes. Exhibit 22 at 6.14 CHDC’s consulting psychiatrist himself admitted, “I don’t typically document all the side effects that might happen.” Exhibit 24 at 161:20-21.
In a substantial departure from accepted professional standards, CHDC’s psychiatrist sees individual residents so rarely that he is unable to timely detect and treat side effects of psychotropic medication. On average, the psychiatrist
14 In fact, there is no clinical oversight of the consulting psychiatrist or his treatment decisions. Further, there is no formal psychiatric peer review at CHDC to evaluate or provide feedback on the psychiatrist’s treatment decisions and documentation. Exhibit 22 at 10. When asked “who, in practical terms, supervises [his] work,” the psychiatrist stated that “Denise [Thomas] keeps up with what I’m doing as much as anybody.” Exhibit 24 at 55:22-56:1. Dr. Thomas stated, however, that she does not supervise any psychiatrists at CHDC. Exhibit 25 at 19:14-15.
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spends approximately 2.4 hours per year with each resident. Exhibit 7 at 6. This allocation of time is inadequate for those CHDC residents with an acute deterioration in psychiatric status or significant psychiatric illness that has proven resistant to trials of psychotropic medication. Id. Such individuals require weekly or even bi-weekly follow-up consultations in order to manage the resident’s medication regimen. Id. Also, because the consulting psychiatrist sees the vast majority of residents in his office rather than on the units, his psychiatric note is often the only means of communication between the psychiatrist and the treatment team. Id. However, as shown above, CHDC’s psychiatric notes do not include any instructive information to the rest of the medical team about known side effects associated with specific psychotropic medications. Id. at 5-6.
CHDC residents are further exposed to medication side effects when they are administered psychotropic medication to control behaviors caused by “environmental” or “situational” factors. CHDC’s consulting psychiatrist admits that he prescribes psychotropic medications to residents to control their response to the chaotic environment in which they are placed. See Exhibit 24 at 143:6-25; 144:1-14; Exhibit 7 at 7-8. Subjecting individuals to psychotropic medication on an ongoing basis to control their response to the environment in which they are placed is a gross violation of generally accepted professional standards. Exhibit 7 at 7. This practice also exacerbates the harms associated with CHDC’s failure to comply with its obligation under the ADA.
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3. CHDC’s Psychiatric Treatment of Children Violates Generally Accepted Professional Standards and Places CHDC Children at Imminent Risk of Harm and Death
In 2008, CHDC administered toxic levels of Lithium to an eight-year-old
resident, placing him in a near-fatal coma and causing him possible permanent
organ damage. Exhibit 7 at 4-5. Despite this incident, as well as the fact that
CHDC clinicians consider the children admitted to the facility to have complex
mental health issues, Exhibit 24 at 38:14-21, and the fact that 80% of these
children receive psychotropic medication, Exhibit 23, their psychiatric care is
provided by a person with no formal education or training in child psychiatry.
Exhibit 24 at 33:16-18; 34:10-12.
This is a substantial departure from accepted professional standards. The
American Academy of Child & Adolescent Psychiatry (AACAP) Policy Statements
regarding Criteria for Clinical Privileges for Physician Members of Medical Staffs
specifically states:
For patients under 14 years of age, a qualified psychiatrist is a child and adolescent psychiatrist who is board certified in child and adolescent psychiatry or a psychiatrist who in addition to general psychiatry training has successfully completed a training program in child and adolescent psychiatry accredited by the Accreditation Council on Graduate Medical Education.
For patients 14-17 years of age or older, a qualified psychiatrist is a child and adolescent psychiatrist as noted above or general psychiatrist who has documented sufficient, specialized training and experience in working with adolescents and their families on an inpatient treatment program, and has demonstrated competence to examine and treat adolescents comprehensively.
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Exhibit 22 at 7-8. The ongoing treatment of institutionalized children by a psychiatrist who has
no formal training or accreditation in child and adolescent psychiatry substantially departs from generally accepted professional standards. Exhibit 7 at 6-7; Exhibit 22 at 7. Psychiatric treatment of children with complex mental health needs that is administered by persons unqualified to render it exposes those children to risk of harm (Exhibit 7 at 6), threatening their “liberty interest in safety,” and depriving them of the adequate medical care to which they are entitled. Youngberg, 457 U.S. at 318-324.
4. CHDC Unreasonably Restrains Residents in Violation of the Fourteenth Amendment.
The right of individuals with developmental disabilities to be free from unreasonable restraints has long been recognized under federal law. Youngberg, 457 U.S. at 316; see Lelsz v. Kavanagh, 673 F. Supp. 828, 850-851 (N.D. Texas 1987) (use of mechanical restraints and aversive techniques barred as improper punishment); Thomas S. by Brooks v. Flaherty, 699 F.Supp. 1178, 1200-1201 (W.D. N.C. 1988), aff'd, 902 F.2d 250 (4th Cir. 1990) (due process protection includes freedom from undue bodily restraint). “Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from
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arbitrary governmental action.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part).
Restraints should only be used when a patient is a danger to himself or to others. See Youngberg, 457 U.S. at 324 (“[The State] may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training.”); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245 (2d Cir. 1984) (holding that patients of mental health institutions have a right to freedom from undue bodily restraint); Thomas S., 699 F. Supp. at 1189 (“It is a substantial departure from professional standards to rely routinely on seclusion and restraint rather than systematic behavior techniques such as social reinforcement to control aggressive behavior.”). “Seclusion and restraint should only be used as a last resort.” Thomas S., 699 F. Supp. at 1189.
CHDC’s psychology and behavioral management program lacks basic requirements to safeguard against the inappropriate use of mechanical restraints and thus violates the Constitution and federal regulations. Notably, federal regulations emphasize that restraints should only be used if “necessary,” and in the context of a comprehensive “active treatment” program. See, 42 C.F.R. § 483.420(a)(6); 42 C.F.R. § 483.450(b) (3). Federal regulations expressly prohibit the use of restraints as a substitute for such “active treatment.” See 42 C.F.R. § 483.450(b) (3). “Active treatment” requires much more than a modicum of
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professional review or thought. Rather, a state must ensure that its treatment for people with developmental disabilities:
... includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward - (I) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and (ii) The prevention or deceleration of regression or loss of current optimal functional status.
42 C.F.R. § 483.440 (a) (emphasis added). Yet CHDC’s psychology program does not include even the basic components of a credible clinical treatment process, let alone serve as “active treatment.”
At CHDC, several factors demonstrate how state psychologists substantially depart from generally accepted professional standards in their everyday practice, and instead rely on restraints in lieu of appropriate treatment. First, major components of CHDC's treatment program, including specific treatment approaches and underlying philosophies, are not based on any type of demonstrably reliable model. CHDC’s Chief of Psychology acknowledges that forms, assessment instruments, interventions and other CHDC practices governing treatment and restraint are idiosyncratic to CHDC. Exhibit 43 (Deposition of Carl Reddig) at 91:11 - 93:1. Nor are they founded on any type of evidence-based, clinically defensible methodology. Exhibit 26 at 6-7; Exhibit 27 at 6-7. Even basic information, such as a resident’s level of intellectual functioning, is not properly
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assessed. Exhibit 26 at 7. For instance, Dr. Matson, the United States’ expert consultant, identified at least 40 individuals whose intellectual levels were incorrectly identified based on CHDC’s own documentation. Id. Trying to treat residents with complex psychological conditions without utilizing demonstrably reliable instruments and techniques is indefensible in terms of professional and legal standards.
Second, the staff's failure to properly track and limit the use of certain types of restraint, such as helmets and fixed dining trays on wheelchairs, itself reflects an unawareness of basic clinical standards. Id. at 5. Using restraints such as the papoose board in response to behaviors is problematic enough, but CHDC staff further depart from generally accepted professional standards by using an array of other restraints without even monitoring them as restraints. Id.
Third, the ostensible diagnoses or clinical justifications for using restraints in individual cases are frequently specious. Dr. Matson found nearly thirty cases where the etiology of mental health conditions could not be clinically justified. Id. at 8.
Fourth, CHDC's ability to evaluate the effectiveness of the weak treatment plans currently used at the facility is inherently poor, because written policies and training programs do not ensure that staff actually implement those plans. Id. at 7-9; Exhibit 27 at 5-8. For instance, CHDC does not have fidelity measures to ensure that staff implement treatment plans as written; nor does CHDC conduct
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competency training to ensure that staff understand the plans that they are implementing. Exhibit 26 at 8-9; Exhibit 27 at 6-7. Individuals are being restrained because of their behavioral response to the environmental conditions in which they are placed, even when CHDC staff have identified environmental conditions as triggers for those behaviors. Exhibit 27 at 7. This results from both CHDC’s failure to provide appropriate behavioral interventions and from the environment in which these individuals are placed. Id.
CHDC’s failure to understand how environmental factors trigger uses of restraints, id., is of particular concern, given that treatment teams inappropriately identify individuals’ need to “stabilize behavior” as a prerequisite for discharge to a more integrated setting. Exhibit 3 at 7-8. Thus, in some cases, an individual who is inappropriately segregated at CHDC may be subjected to severe forms of restraints, such as papoose boards, to control behaviors that he may not even exhibit if in the community. Id.
Finally, administrative safeguards to limit the misuse of restraints by staff are poorly enforced. State policies require debriefing after restraint use, release from restraints to allow positive programming, and staff compliance with restraint release criteria, but in practice, CHDC does not actually comply with any of these policies. Exhibit 27 at 5-6. Further, when our consultants evaluated mechanical restraint use, they found cases where release criteria appeared to be unreasonable or applied haphazardly. Exhibit 26 at 9-12, Exhibit 27 at 6, 13-14. Utilizing
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restraint without these types of safeguards and procedures is another example of how CHDC staff substantially depart from generally accepted professional standards.
Examples of how staff misuse restraints have been identified throughout the course of the United States’ investigation. Exhibit 26 at 9-12; Exhibit 27 at 2, 4, 8-14. CHDC staff repeatedly write restraint programs where the criteria for use of, and release from, restraints are facially vague, arbitrary, or inappropriate. See Exhibit 26 at 9-12. For instance, one 16-year-old boy may be placed in a papoose board “depending on the judgment of the staff regarding the extensity of the behavior and its potential for harm.” Id. at 10. In another example, staff may place a 10-year-old boy in a papoose board until he is “relatively quiet and still for 5 minutes.” Id. at 9. In yet another case, staff may use a papoose board on a 14-yearold girl until she is apologetic for her behavior. Id. at 11. Federal regulations allow restraints only when necessary and when other reasonable treatment measures have failed. See 42 C.F.R. §§ 483.420 (a)(6), 483.440(a); 483.450(b)(3). This is not the case at CHDC, and these examples illustrate the deeply flawed judgment of CHDC professionals when utilizing restraints.
The restraint practices at CHDC violate such basic tenets of clinical practice that the United States is likely to prevail. Globally, every use of restraints at CHDC is problematic because, as set forth above, CHDC staff do not understand, or choose not to implement, the basic components of a behavioral management
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program. Without first attempting to manage behaviors in a clinically appropriate manner, the use of restraints cannot be presumed appropriate or necessary. Cf., 42 C.F.R. §§ 483.420 (a)(6), 483.440(a); 483.450(b)(3). Indeed, the better presumption may be that given contemporary standards, widespread use of mechanical restraints is inherently unreasonable. In fact, many other facilities across the country now “use little or no mechanical restraints” at all. See Exhibit 26 at 5 (emphasis added), Exhibit 27 at 5.
CHDC restraint practices substantially depart from generally accepted professional standards and thus violate the standard set in Youngberg. A contrary conclusion would effectively allow CHDC to utilize some of the most restrictive devices imaginable, even on children, in disregard of federal law and policy that strongly favors treatment of individuals in the most integrated setting and with far less restrictive measures whenever possible.
C. THE BALANCE OF HARMS FAVORS GRANTING THE INJUNCTION
As set forth in Section III.A above, the harm that CHDC residents face due to inappropriate placement, medication mismanagement, and excessive and inappropriate use of restraints is grave, irreversible, and, at times, lethal. In contrast, the narrow measures of relief requested in this Motion cause no significant harm to Defendants. To remedy the harm caused by CHDC’s constitutional violations, CDHC must simply invest the minimum resources and administrative
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support necessary to protect the lives and safety of its residents. “While requiring defendants to adopt polices [sic], procedures, and training so as to provide . . . a reasonably safe environment . . . may impose some administrative inconvenience, any burden on the defendants is minimal when viewed in light of defendants’ legal responsibility to provide a safe environment.” R.G. v. Koller, 415 F. Supp. 2d 11129, 1162 (D.Haw. 2006).
Moreover, the narrow ADA relief requested in this Motion focuses directly on children – the class of individuals most at risk of irreparable harm from inappropriate institutionalization and from the unconstitutional conditions at CHDC. And that relief furthers the State’s professed goal of “ensur[ing] optimal and innovative growth of the Arkansas service system to meet the needs of persons with developmental disabilities and to assist such persons to achieve independence, productivity, and integration into the community.” Exhibit 41. See also Exhibit 12 at 21 (setting as a “Priority Recommendation” to “[f]acilitate transitions from institutional settings to the community”). It would be unreasonable for the State to argue that it will be harmed by complying with its stated goals.
D. THE PUBLIC INTEREST IS SERVED BY GRANTING THE INJUNCTION.
Lastly, this Court must consider whether granting the injunction is in the interests of the public. Dataphase, 640 F.2d at 114. This factor unquestionably weighs in favor of the preliminary injunction, because “there is the highest public
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interest in the due observance of all the constitutional guarantees.” United States v. Raines, 362 U.S. 17, 27 (1960).
Ensuring that citizens receive adequate medical and mental health care is in the public interest. Jaffe v. Redmond, 518 U.S. 1, 11 (1996) (“The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.”); Arkansas Medical Society v. Reynolds, 834 F. Supp. 1097, 1102, 1103-04 (E.D. Ark. 1992) (“‘[I]n view of the public interest involved, medical care to patients, the Court feels that the weight of discretion is on the side of granting the motion [for preliminary injunction].’”) (internal citation omitted).
Protecting citizens against undue restraint is likewise in the public interest. See, e.g., National Ass’n of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d 33, 45 (D.D.C. 2000) (finding that the public interest supported upholding a rule that required medical review of restraints after one hour because “restraints and seclusion are dangerous interventions” and “severe psychological and physical injuries” result from the inappropriate use of restraints”).
Finally, there is a strong public interest in eliminating the harm that attends unnecessary and inappropriate isolation. As noted in Olmstead, the unjustified segregation of persons with disabilities perpetuates unwarranted assumptions that they are incapable or unworthy of participating in community life. Olmstead, 527 U.S. at 600. Moreover, it severely diminishes individuals’ ability to enjoy activities of daily life, such as family relations, social contacts, work options,
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economic independence, educational advancement, and cultural enrichment. Id. at 601; see also Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 1990 U.S.C.C.A.N. (104 Stat. 327) 445, 473. (“[T]he long-range effects of integration will benefit society as a whole.”). Thus, the public interest strongly supports targeting CHDC’s most immediate life-threatening conditions and providing its youngest and most vulnerable residents with services in the most integrated setting appropriate to their needs.
IV. RELIEF REQUESTED Once admitted to CHDC, a child’s chances of ever living in the community again immediately - and irreparably - decrease. Accordingly, the United States requests narrow and immediate relief designed to protect children’s rights to live in the least restrictive setting and to protect all CHDC residents from further exposure to risk of death and injury as a result of unconstitutional medication management and restraint practices. The United States requests that the Court issue an order providing immediate relief to: a) Cease all admissions of school-aged children to CHDC; b) Prohibit the treatment of CHDC children with psychotropic
medications prescribed by a psychiatrist not accredited in child and adolescent psychiatry and appoint an independent psychiatric consultant to perform a medication side effect assessment of each
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CHDC resident who is receiving or has received psychotropic medications; and c) Prohibit the use at CHDC of the most severe, outdated forms of mechanical restraints. This immediate relief is necessary. The State should be prevented from increasing the number of children currently at risk of the negative effects of unnecessary institutionalization, as well as the dangerous conditions at CHDC. Additionally, children at CHDC are exposed to long-term and potentially fatal side effects from dangerous treatment with psychotropic medications by a psychiatrist who has no formal training or accreditation in child and adolescent psychiatry. Therefore, at a minimum, the State should also be required to retain the services of a certified child psychiatrist at CHDC, in accordance with generally accepted professional standards. Finally, the United States urges that the Court clearly and unequivocally prohibit the State from using papoose boards, restraint chairs, straitjackets, and similar outdated, extreme forms of behavioral restraints on children. Such restraints are widely disfavored nationwide and not in accordance with generally accepted professional standards. Separately, within 90 days of the Court’s order, all other forms of restraint should be reviewed, and revised as appropriate, by an independent team of doctorallevel behavioral clinicians with actual training and experience in contemporary, evidence-based behavioral management programs.
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The immediate steps described above will stop the most emergent harm. It would also be appropriate for the Court to go further, however, as additional relief would mitigate the ongoing irreparable harm caused by the inappropriate, continued institutionalization of children already admitted to CHDC. Every day that a child spends at CHDC causes irreparable harm to that child’s future ability to live successfully in the community and exposes that child to the dangerous conditions at CHDC. The Defendants’ failure to properly assess each individual’s capacity to live in a more integrated setting promotes the assumption - to CHDC residents, their families and the community - that these children are incapable or, worse, unworthy, of participating in community life. The State’s continued expansion of its capacity for institutionalizing children signals clearly that it lacks any genuine commitment to avoiding unnecessary institutionalization. Accordingly, the United States asks the Court to order a prompt and impartial assessment of any children at CHDC by a qualified independent expert, and prompt implementation of procedures to facilitate their placement, as appropriate, in a safe, community setting that provides the comprehensive services these children need in the most integrated environment.
While this relief would not be as streamlined as the other steps described above, it is appropriate even at this preliminary stage. In order to facilitate proper assessment and placement, in accordance with federal law, within 30 days of the Court’s Order, the Parties should jointly choose an individual to be appointed as the
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Community Placement Evaluator. The Community Placement Evaluator should be an independent professional who has substantial experience in expanding community services for children with developmental disabilities and in moving children with developmental disabilities out of institutional placements. If the Parties are unable to agree on the individual, they should petition the Court to make the selection. The State should bear the costs of the Community Placement Evaluator.
Within 90 days of the Court’s Order, the Community Placement Evaluator should assess all the school-aged children at CHDC, including children who have been residing at CHDC for more than 30 days on a “respite” or “emergency” basis, who are not on the community placement list or “Olmstead waiting list.” This assessment should identify whether the child is appropriate for community placement and what, if any, barriers to community placement exist for that individual.
Within 30 days of this assessment, the State, under the supervision of the Community Placement Evaluator, should develop and promptly implement written transition plans for each child that identify both the supports and services necessary to facilitate prompt, safe, and sustainable placement in an appropriate setting and the strategies to overcome placement barriers.
The United States respectfully requests that the Court order the foregoing relief measures, along with whatever additional relief the Court deems necessary.
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Case 4:09-cv-00033-JLH Document 43 Filed 03/09/2010 Page 49 of 51 V. CONCLUSION
For the foregoing reasons, the United States respectfully requests that this Court grant its Motion for Preliminary Injunction.
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Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division Attorney for Plaintiff
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division Attorney for Plaintiff
SHANETTA Y. CUTLAR Chief Special Litigation Section Attorney for Plaintiff
BENJAMIN O. TAYLOE, JR. Special Counsel Special Litigation Section Attorney for Plaintiff
s/ Kerry Krentler Dean KERRY KRENTLER DEAN CHRISTOPHER N. CHENG ARETHEA A. COLES LAURA COON JACQUELINE K. CUNCANNAN VINCENT HERMAN NICHOLAS MAY Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 514-6255 kerry.k.dean@usdoj.gov Attorneys for Plaintiff
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CERTIFICATE OF SERVICE

I certify that on March 9, 2010, I served a true and correct copy of the Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction with the Clerk of the Court using the CM/ECF system, which will send notification to the following:

Thomas York, Esq. York Legal Group 3511 North Front Street Harrisburg, PA 17110 717-236-9675 717-236-6919 (fax) tyork@yorklegalgroup.com

Donald B. Zaycosky York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 717-236-9675 717-236-6919 (fax) dzaycosky@yorklegalgroup.com

Lori Freno-Engman Arkansas Attorney General’s Office 323 Center Street Suite 200 Little Rock, AR 72201-2610 (501) 682-1314 lori.freno@arkansasag.gov

Respectfully submitted,
s/ Kerry Krentler Dean Kerry Krentler Dean Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 514-1841 (202) 514-0212 (fax) kerry.k.dean@usdoj.gov Attorney for Plaintiff

51

 
 Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 1 of 57

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

UNITED STATES OF AMERICA

Plaintiffs,

v.

Case No. 4:09CV00033 WRW

STATE OF ARKANSAS, et aI.,

Defendants.

----------------------~/
BRIEF IN SUPPORT OF "DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION OR, IN THE ALTERNATIVE, DEFENDANTS' MOTION FOR AN ENLARGEMENT OF
TIME TO RESPOND TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION" AND
DEFENDANTS INITIAL RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

The Defendants file this brief in support of "Defendants' Motion To Strike Plaintiffs

Motion For Preliminary Injunction Or, In The Alternative, Defendants' Motion for an

Enlargement Of Time To Respond To Plaintiffs' Motion For Preliminary Injunction"

(hereinafter referred to as "Defendants' Motion"). Since the Court has not yet had an

opportunity to rule on Defendants' Motion, and since a response to Plaintiffs Motion For

Preliminary Injunction (hereinafter referred to as "Plaintiffs Motion") is due without a favorable

ruling on Defendants' Motion, the Defendants also include herein an initial response to

Plaintiffs Motion.

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 2 of 57
I. THE COURT SHOULD STRIKE THE BELATED AND INAPPROPRIATE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Plaintiffs Motion For Preliminary Injunction is a transparent attempt to disrupt
Defendants trial preparation, to present allegations without opportunity for a fair rebuttal, and to obtain relief that it would not otherwise receive in a full and fair trial on the merits. In an attempt by Plaintiff to avoid the reliable and compelling opinions of the Defendants' experts whose reports are forthcoming in a few weeks (they are due on April 27, 2010 in accordance with the parties' discovery plan), and to possibly even distract or disrupt the preparation of those reports in the very limited time allowed by the schedule negotiated by the parties, the Plaintiff has chosen to try to ambush the Defendants before their defense can be completed. The evidence,however, reveals the lack of urgency and the lack of merit to this request for preliminary injunction, and, therefore, the lack ofjustification for filing this Motion at this crucial time in preparation of the defense.
A. THE CONWAY HUMAN DEVELOPMENT CENTER IS FULLY REGULATED AND ACCREDITED WHICH CONTRADICTS ANY CLAIM OF URGENCY OR IRREPARABLE HARM
The Plaintiff does not license or regulate the operation of Conway Human Development Center ("CHDC") or any other Intermediate Care Facilities for People with Mental Retardation ("ICF/MR"). The federal agency responsible for licensing and regulating CHDC, and approximately 7,500 other ICF/MR facilities, is the Centers for Medicare and Medicaid Services ("CMS"). The ICF/MR Program was established in 1971, when legislation was enacted that provided for federal financial participation (FFP) for ICF/MRs as an optional Medicaid service. To qualify for Medicaid reimbursement, ICF/MRs must be certified by CMS and comply with stringent federal standards in eight areas, including: management, client protections, facility staffing, active treatment services, client behavior and facility practices, health care services,
2

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physical environment, and dietetic services. 42 CFR Part 483, Subpart I, Sections 483.400-
483 .480 (emphasis added).
CHDC always has been certified by CMS and there has never been a period when CHDC's certification has lapsed. l CHDC is also accredited by the Commission on Accreditation
of Rehabilitation Facilities ("CARP"). 2 CHDC has been accredited by CARP since 1998.
CARP conducted its most recent survey ofCHDC from December 7, 2009 to December 9, 2009, which was more recently than any of the Plaintiffs consultants visited CHDC. In January 2010, CARP granted CHDC another three year accreditation, through January 2013.3 Defendants
Exhibit A. CARP did not raise any of the alleged concerns addressed by the Plaintiffs Motion.
The fully accredited status of CHDC clearly belies any claim of harm or urgency in
Plaintiffs Motion.
B. THE SIGNIFICANT DELAY OF THE PLAINTIFF IN SEEKING A PRELIMINARY INJUNCTION BELIES ANY CLAIM OF IRREPARABLE HARM
The Plaintiff opened its investigation in 2002. The Plaintiff had more than six (6) years
to review in great detail all of the services provided at Conway Human Development Center
("CHDC"). Before filing suit in January of2009, the Plaintiff used multiple experts to conduct
tours and reviewed thousands of documents. The Plaintiff had the full cooperation of the State
of Arkansas and had reasonable access to all records and personnel.
1 Plaintiff even relies on the standards set forth by CMS to make its claims. Plaintiffs Memorandum at 37-38, 4142. CMS is specifically tasked with regulating rCF/MRs and is obviously in a much better position to conduct surveys and determine whether professional standards are being met than the Plaintiff. To make its claims, however, Plaintiff ignores the conclusions reached by CMS, that CHDC is meeting all standards, including professional judgment standards, and has decided to do its own review of CHDC and apply different requirements. 2 "CARF is a well-respected, international, independent, nonprofit accreditor of human service providers and networks in the areas of aging services, behavioral health, child and youth services, employment and community services, and medical rehabilitation." www.carf.org/providers.aspx?content=contentiaboutitoc.htm 3 A three-year accreditation is awarded to programs providing the highest quality of services under the CARF standards. CHDC has been awarded three year accreditations by CARF every three years since 1998.
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When the Plaintiff issued its "findings letter" on April 21, 2004, it specifically alleged
issues as to "significant harm or risk of harm from shortcomings in the facilities' health care,
habilitative treatment services, restraint practices, and protection from harm policies." The
Plaintiff also alleged "that the State does not provide services to individuals with disabilities in
the most integrated setting appropriate to individual residents' needs." The Plaintiff noted that
CHDC housed residents "aged 11 to 66". Relevant to the present inquiry, the Plaintiff alleged:
(a) "Conway's psychotropic medication management substantially departs from generally accepted professional standards." Plaintiffs exhibit 1 at 25 . .(b) "Conway's use of restraints substantially departs from accepted professional standards of care and exposes residents to excessive and unnecessary restrictive interventions." Plaintiff s exhibit 1 at 27. (c) "Conway fails to provide basic oversight of resident care and treatment that is critical to ensuring the reasonable safety of its residents." Plaintiffs exhibit 1 at 30. (d) "Conway's provision of special education services does not comport with federal law because it fails to provide individualized educational programs that are reasonably calculated to enable students to receive an appropriate education." Plaintiffs exhibit 1 at 35. "Federal law and regulations require that, to the maximum extent appropriate, children with disabilities, including children in institutions at Conway, receive educational services in the least restrictive setting." Plaintiffs exhibit 1 at 40. "... these students did not experience school in an appropriate setting with appropriate instructional materials." Plaintiffs exhibit 1 at 41. (e) "Arkansas is failing to serve some residents of Conway in the most integrated setting appropriate to their individualized needs." Plaintiffs exhibit 1 at 41.
Despite these alleged findings, the Plaintiff did not file a lawsuit or seek a preliminary injunction
in 2004 or in any of the next five (5) years.4 Apparently, no irreparable harm was occurring
during the period of 2002 to 2009, during which time the DO] voiced the same concerns as they
currently are voicing in their preliminary injunction motion.
4 To clarity, the Defendants seriously dispute the DOl's allegations of unconstitutional or unlawful conditions. But if the DOJ seriously believed their allegations to be true, those conditions (by the DOJ's own admission) have been in place for many years.
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On June 20, 2008, a DOJ consultant, Ramasamy Manikam, Ph.D., submitted to the DOJ a
written report based on a June 19 to June 21, 2007, site visit to CHDC, which included the
reading of case records and reports, and interviews with professional and direct care staff. In
Manikam's 2008 report, Manikam cited issues of restraint usage at CHDC, as well as issues
regarding services for children and young adults. With respect to restraint, Manikam alleged:
a. "[T]he behavioral and psychopharmacological treatments for the residents at CHDC are not very effective and staff has to resort to emergency use of restraints to keep residents' behavior under control. .. " b. "[T]he Papoose board has become an instrument of threat and punishment with some staff... [it] was used when situations did not warrant it ... "; c. "[O]n some occasions, staff actions or inactions injure residents when they are placed in restraints..."; d. "[I]n other cases, residents were placed in available positions and exposed to attack by other residents ..."; e. "[A]n important area of programming, neglected at CHDC, is the integrating of the resident to the milieu subjecting the resident to restrictive procedures .. "; and f. "[T]he sum of my reviews, interviews, and observations at CHDC, suggest that the inefficient psychological assessments and ineffective psychological interventions contribute to the number of restraints and overreliance on reactive behavioral procedures used in its residents."
Manikam, June 20, 2008, Consultant's Report on Site Visit, Conway Developmental Health
Center, Conway, Arkansas at 13-15,22. With respect to services for children and young adults,
Manikam alleged: "CHDC cannot be considered to be the Least Restrictive Environment for a
number of students (for example, MC and SH)." Manikam, June 20, 2008, at 19. Manikam
made recommendations to debrief residents (where appropriate) and staff "involved in
addressing incidents/accidents/restraints etc" and to make a "primary" goal to "eliminate/reduce
restraints." Manikam, June 20, 2008, at 23,24. Thus, the DOJ knew of alleged issues as to
restraint and least restrictive environment for school age children, similar to those raised in this
5

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 6 of 57
Motion for Preliminary Injunction, since at least June of2008.5 Yet, the Plaintiff did not seek an injunction in June 2008, or any reasonable time thereafter, after learning of these issues.
The Plaintiff filed the present lawsuit in January of 2009. The Plaintiff chose not to seek a preliminary injunction at that time.
Following the filing ofthe present lawsuit, tours ofCHDC by Plaintiffs experts spanned four (4) weeks from July 2009 through September 2009. Most of Plaintiffs touring experts spent nine (9) days at CHDC and sometimes as many as seven (7) experts were onsite at the same time. Plaintiffs counsel was present for all of these tours and had unlimited opportunity to communicate with these experts. Plaintiffs counsel and experts requested thousands of pages of documents. CHDC staff produced may documents the same day or within a few days. The disruption, burden, and stress to the staff at CHDC was tremendous.
The Plaintiffs counsel had the opportunity to observe, and to discuss with Plaintiffs experts, the children living at CHDC and the services provided to those children. The Plaintiff, however, chose not to seek a preliminary injunction in September of 2009 at the conclusion of its experts tours, or at any reasonable time thereafter. Apparently, there was no irreparable harm to the residents at CHDC at that time.
Late in September 2009, during the last week of tours by its experts, the Plaintiff sought Defendants' agreement to extend the trial date and to extend the time to which the parties had agreed for Plaintiffs to complete its expert reports. Absolutely no mention was made of any need for immediate relief or for a preliminary injunction. The Plaintiff, instead, chose to seek even more time than originally agreed to complete its expert reports, which further contradicts any
5 Please note, despite the alleged urgency, the report ofManikam was not provided to the Defendants until December of2009, shortly before the Complaint was filed. Apparently, there was no urgency in revealing the findings ofManikam.
6

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 7 of 57
claimed urgency to have this matter heard.6 As a result of this extension oftime, and due to the understandable limited availability ofthe Honorable J. Leon Holmes, Chief Judge, the case was delayed from April of 2010 to September 2010, a delay of approximately five (5) months. The Plaintiff requested the delay of this allegedly "urgent" case so that its experts could have the additional months to complete their reports, but now seeks to deny the Defendants their agreed to ·period of time to complete their expert reports.
On December 23,2009, the Plaintiffs experts completed their reports which are cited extensively in Plaintiffs Motion and which form the alleged basis for a preliminary injunction.7 However, despite the alleged urgency in Plaintiffs Motion, no preliminary injunction was sought by the Plaintiff until over two (2) months later. Even if the Plaintiff claims it needed over two (2) months to complete its Motion, the Defendants should receive at least a similar period to prepare a response. If the matter was not so urgent as to allow the Plaintiff to casually complete its Motion, then Defendants should receive a fair period to respond to this voluminous Motion.
On February 15,2010, the Defendants timely disclosed their experts' identity as required by the agreement ofthe parties. The Defendants' experts only have until March 25,2010, to complete any visits to CHDC, and only until Apri127, 2010, to complete their reports. At this crucial time, Defendants' experts must be able to focus on their expert reports and must have full access to the staff at CHDC and to Defendants' legal counsel. Not coincidently, the Plaintiff filed its Motion on March 9 in the middle of the very crucial period for Defendants' experts, and
6 At a minimum, this demonstrates the unfairness of Plaintiff's position in taking the full opportunity of the time available to complete its expert reports, but now seeking to disrupt the completion of the reports of Defendants' experts. 7 The Plaintiff now seeks to file declarations of their experts that expand upon or alter the opinions in their reports which is a violation of the Scheduling Order. The reports of Plaintiff's experts were due December 23,2009, and all efforts to belatedly supplement their reports should be denied. Defendants also reserve the right to move to exclude all or portions ofthe Plaintiff's consultants' declarations and reports as well as the testimony of any or all of Plaintiff's consultants pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and the Court's Amended Scheduling Order.
7

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 8 of 57
Defendants' Counsel, to complete their expert reports. Responding to a motion for preliminary injunction at this inappropriate and unfair time will be highly prejudicial to the Defendants.
The suspect timing of Plaintiff's Motion is made apparent by Plaintiff's allegations in this Motion. The Plaintiff has had all ofthe information that forms the basis for its allegations since at least December 2009, and in many regards much sooner. The Plaintiff was given detailed information through their initial investigation in 2003, and many of the instances that the Plaintiff cites were evident during their initial investigation. The same is true of the DOl's return visit in June of 2007. All of the information relied on by Plaintiff in its Motion has been available to Plaintiff for months and, in many instances, years. If Plaintiff believed a preliminary injunction was warranted on the basis of these facts, then it would have been negligent or derelict in protecting the residents at CHDC to delay its request until March of this year.
The Plaintiff has not alleged any new facts that would justify the tremendous burden that would be put on the Defendants to respond to Plaintiff's Motion and simultaneously complete expert reports and prepare for trial. Plaintiff has taken full advantage of the discovery schedule to prepare its case, including expanded time for its consultants' reports, and now seeks to ambush the Defendants. Plaintiff's Motion for Preliminary Injunction is a transparent attempt to sabotage the Defendants' preparation of their case. The timing of Plaintiff's Motion is otherwise inexplicable.
Plaintiff's delay in seeking a Preliminary Injunction "belies any claim of irreparable injury pending trial." Hubbard Feeds v. Animal Feed Supplement, 182 F.3d 598 (8th Cir. 1999); See also Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964, 968 (2d Cir. 1995) (Plaintiff's delay "undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury." Ty, Inc. v. Jones Group, Inc., 237
8

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 9 of 57
F.3d 891,903 (7th Cir. 2001) ("Delay in pursuing a preliminary injunction may raise questions regarding the plaintiffs claim that he or she will face irreparable harm if a preliminary injunction is not entered."); Palm Beach County Environmental. Coalition v. Florida, 587 F. Supp. 2d. 1254, 1257 (S.D. Fla. 2008) (stating that delay in both seeking injunctive relief when the substantial issues were known to the plaintiffs and failure to timely serve defendants "belie[] plaintiffs' argument that there will be immediate injury absent injunctive relief'); Golden Bear Int'!, Inc. v. Bear U.S.A., Inc., 969 F. Supp. 742, 748 (N.D. Ga. 1996) (Camp, J.) ("Preliminary injunctions are issued to prevent imminent and inevitable injury to the movant, and undue delay 'speaks volumes about whether a plaintiff is being irreparably injured."') (citation omitted).
Clearly, there is no reasonable allegation of irreparable harm as evidenced by the Plaintiffs lack of urgency in bringing this Motion.
C. THE PLAINTIFF UNFAIRLY SEEKS TO DEPRIVE THE DEFENDANTS OF THE BENEFIT OF THEIR NEGOTIATED AGREEMENT ALLOWING REBUTTAL OF THE PLAINTIFF'S CONSULTANTS
In the Spring of2009, the parties negotiated, with some difficulty and disagreement, a discovery schedule that would fit into the time frame suggested by the Court. The Court had set a trial date in April of 20 10, so the parties unequally divided the available time. The State was not pleased with the limited time it received in the negotiations, but accepted the due dates in exchange for other aspects of the negotiated schedule. For example, the State placed great weight in and relied heavily on the fact that the Plaintiff would designate its experts early on in the process (July 1,2009) and would submit its reports first (October 21,2009) which would allow the State sufficient time to plan its expert strategy, to locate experts, to retain experts, and to have its experts available and able to complete their reports in the very short time allowed. The State accepted a very limited time for completing its expert reports, and significantly less
9

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 10 of 57
time than provided to Plaintiffs experts, because the schedule allowed them the benefit of being able to respond fairly and fully to the issues to be revealed by Plaintiffs experts.
In complete disregard of its obligations under the negotiated agreement, the Plaintiff now seeks a ruling from the Court before the Defendants have been provided the negotiated period to respond. The Plaintiff seeks to ambush the Defendants before they receive the full benefit of their agreed upon schedule for rebuttal.
The State was focused upon the extremely important comparison of the time allowed to Plaintiffs experts to complete their reviews and reports versus the time allowed to the State's experts to complete their reviews and reports. Because the State's experts must review everything reviewed by the Plaintiffs experts, and must usually review even more information than Plaintiffs experts to place the issues in proper context and to cover information often overlooked by Plaintiffs experts, the State's experts should receive as much time, if not more, than Plaintiffs experts. Under the original agreement on the schedule, the following was the allotment of the limited time available:
Plaintiffs expert - NINE (9) MONTHS, from filing of Complaint to the due date of their expert report. State's experts - THREE (3) MONTHS from receipt of Plaintiffs experts' reports to the due date of their reports.
This discrepancy was tolerable only because the Plaintiff was required to present the opinions of their experts first and to thereby allow the Defendants to have a full and fair opportunity to respond thereto before any trial or decision on the merits. If there had been no promise to allow a full and fair response, there would have been no agreement to allow the Plaintiff to conduct discovery and to complete expert reports.
10

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After two (2) negotiated extensions of time, both requested by the Plaintiff and both resulting in more time being given to the Plaintiffs experts than to the State's experts, the early promise to allow rebuttal by Defendants remained crucial and perhaps became even more important. The new allotment of time became:
Plaintiffs experts - ELEVEN (11) MONTHS from filing the Complaint to the due date of their reports. State's experts - FOUR (4) MONTHS from receipt of the Plaintiffs experts' reports to the due date oftheir reports. This discrepancy continued to be tolerable only if the Plaintiff honored its commitment to allow a full and fair opportunity to Defendants to complete their discovery, their expert reviews, and their expert reports. The relevant consideration is the unfair comparative advantage in time that Plaintiffs experts have over the State's experts. The State is clearly and undeniably prejudiced if it is denied its negotiated benefit of a full and fair opportunity to rebut the allegations of Plaintiffs experts. The State was willing to live with this unequal allotment of time ifit had the benefit of early disclosure of expert opinions and a reasonable period for rebuttal, but it is not willing to accept this schedule if it is denied the benefit of their negotiation. The State will be comparatively harmed by the loss of the benefit of the bargain as to the agreed upon schedule. Although this prejudice is hard to quantify or demonstrate, it is obvious that the State's experts will have less time to complete their reports if the Defendants are distracted by a response to the Plaintiffs Motion for Preliminary Injunction. The prejudice to the State will result in less effective and less thorough rebuttal reports than would have been obtained if the negotiated schedule had been honored. The Plaintiff should be forced to demonstrate respect for the schedule it negotiated and the State should receive the full benefit of
11

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 12 of 57
the schedule it negotiated. When one considers the comparative time allowed to both the Plaintiff's experts and the State's experts, the State is prejudiced by the Plaintiff's delayed filing of its Motion for Preliminary Injunction. Changes to that schedule now will severely harm the defense and will result in a need to set a longer schedule that may delay the September 2010 trial date. The delay is not acceptable to the State.
The Plaintiff has not honored the agreement of counsel. The Plaintiff should be bound by its agreement and denied any belated request for preliminary injunction. The Court should not reward the manipulations by the Plaintiff to obtain a ruling on a preliminary injunction especially where there is no demonstrated urgency.
The State will be severely prejudiced by the belated filing of a motion for preliminary injunction as it disrupts its well-planned and efficient defense. The defense of the State will be significantly compromised by the need to divert the attention of its administrators, employees, experts, and attorneys to responding to the request for preliminary injunction rather than completing their important expert reports and otherwise preparing for trial, which is set for September of2010. 8 This trial date was set following an October 21, 2009 telephone conference between this Court and the parties. Although Plaintiffs experts already had finished their tours of the Center as of this conference date, Plaintiff stated no objection to a trial date sometime in the Fall of 20 1O.
To the limited extent the Defendants can prepare a response to the request for preliminary injunction in such a short time allowed, after the Plaintiff took months or years to prepare its Motion, the Defendants should not be forced to rush their experts' opinions or to divulge those
8 In fact, the Plaintiff has now served their Eighth Request for Production of Documents that seeks an extensive number of documents (eighty numbered paragraphs of requested documents and subparts) which further interferes with the preparation of Defendants' case. The Plaintiff has also noticed the depositions of twenty (20) more state officials/employees for the weeks of April 19 and April 26 which also interferes with the completion of Defendants' expert reports.
12

Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 13 of 57
opinions before the agreed upon deadline of April 27, 2010. The Plaintiffs experts did not have to divulge their thoughts or initial findings before their reports were due on December 23,2009.
Magistrate Judge Jones recognized the importance of the mutually-negotiated deadlines set forth in the Amended Scheduling Order in his December 7, 2009 Order denying Plaintiffs request to add additional experts beyond these deadlines provided in the Amended Scheduling Order. Judge Jones noted, that the deadline in the Amended Scheduling Order "was more than a courtesy, it was a negotiated deadline relied upon by the Defendants." December 7,2009 Order at 7. Similarly, Defendants have relied upon the due date for their experts' reports.
The Plaintiff seeks to avoid its agreement that Defendants need not complete their expert reports until April 27, 2010. The Plaintiff seeks to disrupt or interfere with the completion of these reports in the very limited time allowed by agreement of the parties.
D. THE PLAINTIFF CANNOT PREVAIL ON ITS CLAIMS IF THE DEFENDANTS ARE GIVEN FULL AND FAIR OPPORTUNITY TO COMPLETE THEIR DISCOVERY AND EXPERT REPORTS
In Youngberg, the U.S. Supreme Court cautioned that "interference by the federal judiciary with the internal operations of these institutions should be minimized." Youngberg v. Romeo, 457 U.S. 307,322 (1982). Where a Plaintiff seeks to enjoin a government agency, the parties and the Court must respect the "well-established rule" that the government is granted the "widest latitude" in the dispatch of its affairs. Rizzo v. Goode, 423 U.S. 362,378-79 (1976). "Federal courts operate according to institutional rules and procedures that are poorly suited to the management of state agencies." Angela R. v. Clinton, 999 F.2d 320,326 (8th Cir. 1993). Accordingly, courts "should refrain from micromanaging the state and its agencies." United States v. Missouri, 535 F.3d. 844,851 (8th Cir. 2008).
13

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The type of preliminary injunction that Plaintiff seeks in this motion - a preliminary
injunction that (l) disturbs the status quo, (2) is mandatory as opposed to prohibitory,9 and (3)
affords Plaintiff substantially all of the relief it seeks to recover at the conclusion of a full trial on
the merits - is disfavored and requires Plaintiff to show that four factors weigh heavily and
compellingly in its favor.
A preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only to preserve the status quo until a trial on the merits may be had.... Mandatory injunctions are more burdensome than prohibitory injunctions because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure that the nonmovant is abiding by the injunction.... Finally, a preliminary injunction that awards the movant substantially all the relief he may be entitled to if he succeeds on the merits is similar to the "Sentence first-Verdict Afterwards" type of procedure parodied in Alice in Wonderland, which is an anathema to our system ofjurisprudence.
SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098-99 (lOth Cir. 1991); See also
Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979) (noting that because a
preliminary injunction that alters the status quo is "particularly disfavored" the movant must
make a strong showing of entitlement); Harris v. Wilters, 596 F.2d 678,680 (5th Cir. 1979)
("Only in rare instances is the issuance of a mandatory preliminary injunction proper.").
Plaintiff seeks a mandatory injunction granting much of the relief sought in its Complaint
without providing Defendants the full benefit of discovery, expert rebuttal, or a trial on the
merits. Plaintiffs Motion seeks to preemptively adjudicate this matter by depriving Defendants
of their due process. Plaintiffs Motion does not allege facts that weigh heavily or compellingly
in its favor. Plaintiff has merely relayed its consultants' opinions in a motion that only serves to
9 Mandatory injunctions compel action, while prohibitory injunctions forbid action. Meghrig v. KFC W., Inc., 516 U.S. 479,484 (1996) (stating that a mandatory injunction orders a party to "take action" and a prohibitory injunction "restrains" a party from further action).
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disrupt Defendants' preparation for trial. As discussed below, many or all of those consultants' opinions will be proven false.
Although Defendants' experts are deeply immersed in conducting their review of CHDC, they have reported verbally numerous misrepresentations and errors made by Plaintiffs experts. The Defendants' experts have verbally advised that the information digested to date does not support the conclusions reached by Plaintiffs experts. Given a full and fair opportunity to complete these reviews, the Defendants are reasonably optimistic that the reports of Plaintiffs experts will be fully and convincingly discredited at trial. The Plaintiff has made many factual misrepresentations and a response to all of those misrepresentations will require Defendants to dedicate substantial resources away from its report preparation and trial preparation.
As an example of the type of misrepresentations and the type of response that Defendants would be required to prepare, the Plaintiff inaccurately claims that
CHDC residents die at the strikingly young age of 46.5 years. Exhibit 7 (Declaration of Edwin Mikkelson) at 8. According to comparative studies, 72 years of age is the approximate normal life span for individuals with developmental disabilities who live in an institution, a quarter of a century longer than residents of CHDC. Id. Plaintiffs Memorandum of Points and Authorities at 5. 10 This allegation is unsupported by the data and is outrageously false. It was obviously intended to create sensational newspaper headlines and to bias the Court, but it is baseless. Plaintiffs citation is to its consultant, Dr. Edwin Mikkelsen's declaration, which is attached Plaintiffs Memorandum. Dr. Mikkelsen is a psychiatrist. His declaration states: After reviewing summaries of mortalities that occurred at CHDC over a two-year period, I calculated the average age of death for CHDC residents to be 46.4 years. According to comparative
10 The Defendants object to having to reveal any oftheir experts' opinions prior to the date agreed upon by the Plaintiff. However, Defendants want to demonstrate the frivolous nature of Plaintiffs Motion.
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studies, rates of approximately 72 years of age are the normal life span for individuals with developmental disabilities who live in an institution, a quarter of a century longer than residents of CHDC.
Plaintiffs Memorandum of Points and Authorities, Exhibit 7 at 8. I I Dr. Mikkelsen's declaration
appears to be based in part upon a section of his report, which was also attached to Plaintiffs
Memorandum of Points and Authorities as Exhibit 7.A.1. Dr. Mikkelsen's report states, in part,
Two states (CT and MA) publish Mortality Reviews that are available to the public, and which provide sufficient detail to make direct comparisons with the CHDC data that I have compiled. I also have enough direct experience with the state-operated facilities in CT and MA to determine that the physical and intellectual characteristics of the residents in these facilities are comparable to the population that resides at the CHDC. These states also, specifically, report on the average age of death of those individuals who reside in their facilities, separate from the population that reside in other residential settings.
The average age of death of individuals who reside in the large residential facilities in MA is 71.7 years. CT continues to operate one large state residential facility, which is the Southbury Training School. This facility is larger than those in MA and has a census of over 500 individuals, which is comparable to the CHDC population. The average age of death at this large state-operated facility is 72.8 years. Thus, the residents of these state-operated facilities enjoy life spans that are approximately 25 years longer than those 0 f the CHDC residents.
Plaintiffs Memorandum of Points and Authorities, Exhibit 7.A.l at Ch.2, p. 8. The two
documents cited by Dr. Mikkelsen are attached as Defendants' Exhibits B and C. The
conclusions of Dr. Mikkelsen are seriously flawed.
Dr. Mikkelsen admitted during his deposition that he did not have data regarding the age
of the residents of the Southbury Training School or Massachusetts facilities. Exhibit F at 218.
Without knowing the distribution of the ages of the residents, this type of analysis has no value.
Obviously, a facility with an older population would have an older average age of death than a
11 The Defendants object to this belated attempt to supplement his expert report beyond the agreed upon deadline.
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facility with a younger population. 12 Furthermore, CHDC has an extremely high concentration of persons who are medically fragile which is not accounted for in any calculation by Dr. Mikkelsen. The conclusions by Dr. Mikkelsen are not statistically or scientifically sound.
Defendants engaged a nationally-recognized expert to specifically respond to this and other allegations. A draft section ofthe report of this Defendants' expert is attached as Defendants' Exhibit D. As described by that expert, based on Dr. Mikkelsen's flawed reasoning, which Plaintiff has inappropriately endorsed and incorrectly represented to the Court as a scientific fact, the most dangerous place for an individual with developmental disabilities to live in Connecticut or Massachusetts is in their own horne. Exhibit D at 9. It is unlikely that Dr. Mikkelsen would agree with this reasonable interpretation of his flawed analysis as he is a staunch opponent of institutional settings. Actually, when a statistically valid analysis of Dr. Mikkelsen's data is done, it becomes dear - CHDC has lower mortality rates than the "comparable" facilities identified by Dr. Mikkelsen. Exhibit D at 13. The Plaintiff has disgracefully and falsely criticized the services at CHDC.
Plaintiff's Motion is replete with this type of misleading information. As another example, Plaintiff misleadingly alleges that "CHDC utilizes 41 different forms of mechanical restraint, including straitjackets, 'restraint chairs,' and 'papoose boards.' Exhibit 26 at 4; Exhibit 27 at 4." Plaintiff's Memorandum of Points and Authorities at 14. Plaintiff, and its consultant, Dr. Matson, deliberately inflated this number for its sensational impact. In an apparent effort to shock the Court with his statistic, Dr. Matson counted the same type of restraint multiple times and included items such as wheelchairs in his tally. Exhibit E at 2.
12 For example, unlike CHDC, the Connecticut and Massachusetts facilities did not have any children. Also, for example, the average age of residents at the Connecticut facility is much higher than the average at CHDC.
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To further demonstrate the depth of response required to expose the inaccuracies of
Plaintiffs Motion, Defendants engaged a consultant to specifically respond to Plaintiffs
allegations about the use of restraints at CHDC. A draft portion of Defendants' consultant's
report on this issue is attached as Exhibit E. As noted in that report:
Since the initiation ofDOJ's interest in the facility mechanical restraints at CHDC have been steadily declining, a fact that was not included in the DOJ experts' reports. .. By 2009 the facility had cut this figure nearly in half...." Exhibit Eat 3. This observation is further evidence that Plaintiffs Motion is disingenuous. The
Plaintiff initiated its investigation of CHDC in 2003. In 2005, Plaintiff knew that certain
restraints were being used at CHDC, in accordance with CMS regulations, at even a higher level
than today, but Plaintiff did not seek to enjoin Defendants then. Since 2005, the use of restraints
has dropped nearly in half. Again, the Plaintiff seeks to unfairly shock the Court, and the press,
to inappropriately obtain some advantage in this litigation. 13
To properly respond to all of the allegations in Plaintiffs baseless motion, Defendants
would have to marshal significant resources, direct resources away from their expert report
preparation and trial preparation, and prematurely disclose its trial defense.
II. AS A LESS ADEQUATE ALTERNATIVE, THAN STRIKING PLAINTIFF'S MOTION, THE DEFENDANTS REQUEST THAT ANY RESPONSE TO PLAINTIFF'S MOTION BE DELAYED UNTIL AFTER THE REPORTS OF DEFENDANTS' EXPERTS HAVE BEEN COMPLETED
Given the great scope of the injunctive relief requested by the DOJ and the severe
adverse impact that such relief would have on Defendants, residents at CHDC, and
13 In fact, the Plaintiff focuses on the children at CHDC in order to further the emotional appeal of its Motion. However, the Plaintiff has known of the services being provided to these children for years but strategically chose to wait until a period of time to file its Motion to cause the most harm to Defendants' case. The Defendants hope that the Court rejects this inaccurate and exaggerated emotional appeal and allows the Defendants sufficient time to complete their valid rebuttal of Plaintiff's claims.
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developmentally disabled individuals served by Defendants,14 Defendants need sufficient time to conduct discovery and prepare a response to Plaintiffs Motion.
The reports of the Defendants' experts are already due on April 27, 2010. A response to Plaintiffs' Motion could be completed within two (2) weeks of those reports being disclosed, or by May 11,2010. This is not a lengthy period to wait to ensure a full and fair adjudication ofthe issues raised by the Plaintiff, especially in light of the self-serving delay of Plaintiff in bringing this Motion. The Court should prefer an accurate and complete presentation of the evidence by both parties over a unilateral, biased, and inaccurate presentation by the Plaintiff.
The Defendants respectfully request that, as a less adequate alternative, that the Court enlarge the time for Defendants to respond to Plaintiff s Motion until May 1, 2001. If the Court forces the Defendants to respond to the Plaintiff s Motion before that time, the Defendants request that the deadline for their expert reports be extended until forty-five (45) days after the Court rules on Plaintiffs Motion, and possibly will request that the trial be delayed. III. THE PLAINTIFF CANNOT MEET THE REQUIREMENTS NECESSARY FOR
THE COURT TO GRANT A PRELIMINARY INJUNCTION It is well-settled in the Eighth Circuit that motions for preliminary injunctions are generally measured against the factors set forth in the seminal decision in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir.1981). See Lankford v. Sherman, 451 F.3d 496,503 (8th Cir. 2006) (same factors); Interbake Foods, L.L.C. v. Tomasiello, 461 F.Supp.2d 943, 954-55 (N.D. Iowa 2006); Doctor John's, Inc. v. City of Sioux City, Iowa, 305 F.Supp.2d 1022, 1033-34 (N.D. Iowa 2004); Uncle B's Bakery, Inc. v. O'Rourke, 920 F.Supp. 1405, 1411 (N.D. Iowa 1996); Straights and Gays for Equality v. Osseo Area Schools-District, 471 F.3d 908,
14 For example, CHDC provides extremely valuable respite services for some children that are experiencing severe behavioral problems and cannot be accommodated in the community. The only alternative would be admission to a psychiatric facility that is not as well suited to address their needs. After these individuals are stabilized at CHDC, they are returned to the community. The injunctive relief requested by Plaintiff would harm these children.
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911 (8th Cir.2006) (same factors); Lankford v. Sherman, 451 F.3d 496,503 (8th Cir.2006) (same factors). These so-called" Dataphase factors" include the following: (1) the movant's probability or likelihood of success on the merits, (2) the threat of irreparable harm or injury to the movant absent the injunction, (3) the balance between the harm to the Plaintiff and the harm that the injunction's issuance would inflict on other interested parties, and (4) the public interest. Dataphase, 640 F.2d at 114.
When applying the Dataphase factors, the burden is on the movant to establish that a preliminary injunction is appropriate. Lankford, 451 F.3d at 503; Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modem Computer Sys., Inc., v. Modem Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989). "'No single Dataphase factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction.' " Baker Elec. Co-op., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500,503 (8th Cir.1987) (citing Dataphase )).
"The primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief." Kansas City Southern Transport Co., Inc. v. Teamsters Local Union #41, 126 F.3d 1059, 1066 -1067 (8th Cir. 1997) (citing Ferry-Morse Seed Co. v. Food Com, Inc., 729 F.2d 589,593 (8th Cir.1984)). "The burden of establishing the propriety of a preliminary injunction is on the movant." Iowa Protection and Advocacy Services, Inc. v. Gerard Treatment Programs, L.L.C. ,152 F.Supp.2d 1150, 1156 (1~.D. Iowa, 2001)(quoting Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994)).
A. PLAINTIFF CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS OF ITS CLAIMS AGAINST DEFENDANTS
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The first factor that the Court must consider when ruling on a motion for preliminary injunction is the likelihood or probability of success on the merits. Dataphase, 640 F.2d at 114. Likelihood of success on the merits requires that the movant support its position in governing law. Baker Elec. Co-op., 28 F.3d at 1473-74; ILQ Inv., Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.1994) (first amendment and prior restraint of expression); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554,556-58 (8th Cir.1993) (Indian tribe's regulatory authority and authority of states to regulate activities on tribal lands); Aziz v. Moore, 8 F.3d 13, 15 (8th Cir.1993) (denial of injunctive relief was proper because federal courts "must abstain from imposing injunctions on prison officials [in an action under 42 U.S.C. § 1983 action] 'in the absence of a concrete showing of a valid claim and constitutionally mandated directives for relief,' ") (quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir.1982)).
"[A]t the early stage of a preliminary injunction motion, the speculative nature of this particular ['likelihood of success'] inquiry militates against any wooden or mathematical application of the test. Instead, a court should flexibly weigh the case's particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." United Indus. Corp. v. Clorox Co., 140F.3d 1175, 1179 (8th Cir.1998) (internal citations omitted). In this case, the Plaintiff has not provided sufficient support for the claims it has asserted.
1. PlaintiffDoes not have the Authority to Seek the ReliefRequested Even if Plaintiff could state a claim for relief under the Fourteenth Amendment or the ADA, CRIPA limits the remedies that Plaintiff can obtain in this case. The CRIPA statutes provide that the DOJ may initiate an action only for "such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment" of
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constitutional rights, privileges; and immunities. 42 U.S.C. § 1997a(a) (emphasis added); See
also Messier v. Southbury Training Sch., 916 F. Supp. 133, 137-38 (D. Conn. 1996) (contrasting
the types of relief available to private plaintiffs with the Attorney General's right under CRIPA
to seek only "minimum corrective measures"). "It is not appropriate for the courts to specify
which of several professionally acceptable choices should have been made." Youngberg v.
Romeo, 457 U.S. 307, 321 (1982); See also 42 U.S.C. § 1997i (stating that provisions ofCRIPA
"shall not authorize promulgation of regulations defining standards of care").
In its motion, Plaintiff requests the following relief:
1. Cease all admissions of school-aged children to CHDC; 2. Direct specific treatment decisions for school-aged children and prohibit CHDC's psychiatrist from treating those children in accordance with his professional judgment and appoint another psychiatrist to second-guess decisions by CHDC's psychiatrist; 3. Substitute the Plaintiff s judgment regarding the use of restraints for the judgment of the licensed, qualified professionals at CHDC that know the residents at CHDC; 4. Defendants retain a child psychiatrist; preclude the use of specific restraints based solely on the Plaintiff s uninformed opinions; I 5 5. Hire an independent team of doctoral level behavioral clinicians to second-guess the treatment decisions of licensed professionals who work with the residents of CHDC everyday; 6. The appointment of a consultant to second-guess the decisions that parents and guardians of those children have made to have their children at CHDC and placement of those children in other settings, regardless of the preferences of the parents or guardians; 7. Appoint a consultant, at Defendants' expense, to be a "Community Placement Evaluator," who must have experience in moving children out of institutions; The "Community Placement Evaluator" would then have 90 days to access all children at CHDC and direct the Defendants which children should be removed from CHDC, then Defendants would have 30 days to develop a transition plan to implement the unilateral treatment decision of the consultant, which is being substituted for the informed decisions of parents, guardians, and treating professional.
15 The specific restraints that Plaintiff wants precluded are recognized by eMS regulations as appropriate methods of restraint when used as part of a treatment plan.
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Plaintiffs Memorandum at 45-48. These requests clearly demonstrate that Plaintiff is not seeking "minimum corrective
measures," but rather to expand Defendants' system of care for the developmentally disabled beyond what is minimally required by the ADA and the Constitution. Plaintiff seeks to impose a system of care based solely on it policy goals. Plaintiff would have an injunctive order issue from this Court that usurps the functions of state officials and reduces them to "mere functionaries in carrying out the court's commands." Newman v. Alabama, 683 F.2d 1312, 1320 (11 th Cir. 1982). Such relief is not authorized by CRIPA. Plaintiff consequently cannot show a likelihood of success on any of its claims for relief.
2. Plaintiff's Substantive Due Process Claim Will Fail Because it Cannot Prove That Defendants Substantially Departed from Accepted Professional Judgment.
States are not constitutionally obligated to provide social services to their citizens. Youngberg v. Romeo, 457 U.S. 307,317 (1982). The State of Arkansas has opted to provide such service to it citizens who have been diagnosed with a mental illness or developmental disability. Because the State has chosen to provide those services, the U.S. Supreme Court has held that the Due Process Clause of the U.S. Constitution's Fourteenth Amendment imposes an affirmative duty on the State to protect certain rights of the individuals that it serves. Specifically, the U.S. Supreme Court has held that persons in state custody have "constitutionally protected interests in conditions of reasonable care and safety, reasonably nomestrictive confinement conditions, and such training as may be required by these interests." Youngberg, 457 U.S. at 324. Courts have consistently held that "reasonable care" does not impose a constitutional standard of optimal treatment and minimal levels of care are sufficient. Id. at 323; Hanson v. Clarke County, 867 F.2d 1115, 1120 (8th Cir. 1989) (finding no constitutional right to
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optimal placement); Canupp v. Sheldon, 2009 U.S. Dist. LEXIS 113488, at *30 (M.D. Fla. Nov. 23,2009) (noting that the U.S. Constitution does not require institutionalized persons to receive optimal treatment and mental health services); Hargett v. Adams, 2005 U.S. Dist. LEXIS 6240, at *36, 50, 53-55 (N.D. Ill. Jan. 13,2005) (finding that Illinois' treatment program was not "optimal," but did not violate constitutional standards).
The State is required only to provide such treatment as an appropriate professional would consider "reasonable in light of [a person's] liberty interests in safety and freedom from unreasonable restraints." Youngberg, 457 U.S. at 322; Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir. 1987); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d.1239, 1250 (2d Cir. 1984); Armstead v. Pingree, 629 F. Supp. 273,276 (M.D. Fla. 1986).
In determining what constitutes "reasonable care," the Supreme Court in Youngberg emphasized that the State "has considerable discretion in determining the nature and scope of its responsibilities." 457 U.S. at 317. Judicial deference must be afforded to the judgment that a qualified professional exercises: "It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." Id. at 321. In fact, decisions made by such professionals are presumptively valid. Id. at 323; P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir. 1990) (stating that courts should not "ascertain whether in fact the best course of action was taken").
Plaintiff has made no allegation that treatment decisions at CHDC are arbitrary or capricious, nor does it claim that such treatment decisions were based on stereotypes of the disabled rather than an individualized inquiry into the needs of each resident at CHDC. See P .C. v. McLaughlin, 913 F.2d 1033, 1041 (2nd Cir. 1990) ) (holding that the Rehab Act "does not require all handicapped persons to be provided with identical benefits," and that the Act "did not
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clearly establish an obligation to meet [Plaintiffs] particular needs vis a vis the needs of other handicapped individuals ...."; See also Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983) (rejecting appellants' argument that the state had the affirmative duty under the Rehab Act "to create less restrictive community residential settings for them," and holding that because "there is no contention that these class members, because of their handicap, are being denied access to community residential living that Illinois is affording to others," the Rehab Act "simply has no application to appellants' claim") (emphasis added).
In Porter v. Knickrehm, the plaintiff brought a § 1983 claim alleging that in the State of Arkansas the human development centers' admission and discharge procedures violated constitutional equal protection and procedural due process rights. Porter v. Knickrehm, 457 F.3d 794 (8th Cir. 2006). The Court affirmed Judge Wright's District Court decisions, holding that "[p]rocedures under Arkansas statutes and under the internal policies of state human development center (HDC) for admission of mentally retarded persons to such centers satisfied procedural due process." Id. at 799. The Court found that" [0]nly minimal protections were needed to meet procedural due process requirements for admitting mentally retarded individual to state human development center (HDC), where admission occurred voluntarily by authority of legal guardian." Id. at 798 (citing Parham v. J.R., 442 U.S. 584,606 (1979)). In the instant matter, the Plaintiff seeks to circumvent State laws and regulations by imposing its policy preference for deinstitutionalization on the Defendants. This Court has already found that the procedures for admission and discharge at the State's human development centers meet constitutional due process standards.
In the instant matter, Plaintiff has attempted to substitute its judgment for that of the Defendants' professionals and seeks to deprive the Defendants of the opportunity to fully
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respond to Plaintiffs allegations in accordance with the schedule Plaintiff previously agreed upon. Defendants maintain that Plaintiffs allegations are unfounded. Defendants have conferred with their experts that are expected to testify at the trial in this matter, and those experts have confirmed that their preliminary reviews support findings that the professionals at CHDC are exercising professional judgment in accordance with professional standards and all of Plaintiffs consultants' conclusions will be challenged at trial.
Even without the Defendants' consultants' investigations completed or their reports finished, the Plaintiff cannot meet its burden. Conflicting expert testimony will not overcome the presumption that the decisions of the treating professionals were valid. A plaintiff cannot meet its burden of proof by presenting nothing more than (1) a difference of professional opinion as to which practices are appropriate or (2) expert testimony that another course of action would have been better. Youngberg, 457 U.S. at 321; Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998); Lelsz, 807 F.2d at 1243; Society for Good Will, 737 F.2d at 1248; Doe v. Gaughan, 617 F. Supp. 1477, 1487 (D. Mass. 1985), affd, 808 F.2d 871 (1st Cir. 1986); See also Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir. 1990) (noting that Youngberg prohibits courts from "weigh[ing] the decisions of the treating professionals against the testimony of the [plaintiffs'] professionals to decide which of several acceptable standards should apply"); Pennsylvania, 902 F. Supp. at 584 ("Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard.").
Plaintiff cites two cases to support its position that "a State violates the Due Process Clause when it provides medical care that substantially departs from professional standards." Plaintiffs Memorandum at 30 (citing Rennie v. Klein, 720 F.2d 266, 269; Morgan v. Rabun, 128 F.3d 694,697-98 (8th Cir. 1997). Both of those citations are misleading. In Morgan v. Rabun
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and Rennie v. Klein, the plaintiffs were involuntarily committed patients in mental health facilities who were treated with psychotropic medications against their will. The courts in those cases applied the standards identified above.
In Morgan v. Rabun, the Eight Circuit considered the substantive due process rights of an involuntarily committed man who was a threat to others. Morgan v. Rabun, 128 F.3d 694,698 (8th Cir. 1997). The Court found that "an individual's liberty interest in avoiding forcible administration of psychotropic drugs is not unconditional. We must balance this liberty interest against the relevant state interests to determine whether Morgan's constitutional rights were violated." Id. at 696-97 (citing Youngberg v. Romeo, 457 U.S. 307,320-21). That Court did not hold, as Plaintiff cited, "a State violates the Due Process Clause when it provides medical care that substantially departs from professional standard." Plaintiffs Memorandum at 30. The Morgan Court reasoned that "[t]he governmental interests in running a state mental hospital are similar in material aspects to that of running a prison. Administrators have a vital interest in ensuring the safety of their staff, other patients, and of course in ensuring the patients' own safety." Id. at 697 (citing Washington v. Harper, 494 U.S. 210, 227, (1990)). The Court reasoned further that its "role is not to determine conclusively that Morgan was indeed dangerous. Rather, we must simply make certain that Dr. Rabun exercised professional judgment in making the determination that Morgan was dangerous." Id. at 697-98 (citing Youngberg. 457 U.S. at 321 (adopting the standard that "the Constitution only requires that the courts make certain that professional judgment in fact was exercised"). In the instant matter, Plaintiff has not alleged that professional judgment was not exercised. Plaintiff has only alleged that its consultants recommend different treatment.
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In Rennie v. Klein, the Court merely reaffirmed its recognition of the right of an involuntarily committed, mentally ill patient to refuse the administration of antipsychotic drugs. Rennie v. Klein, 720 F.2d 266 (3rd Cir. 1983). The Court held that a mentally ill patient who has been involuntarily committed "must have his constitutional right to refuse antipsychotic drugs measured [against] whether the patient constitutes a danger to himself or to others." Id. at 269. The Court held further "[b]ecause that evaluation must be the product of the medical authorities' professional judgment, such a judgment and the resulting decision to administer medication will be presumed valid unless it is shown to be a 'substantial departure from accepted professional judgment, practice or standards.'" Id. (citing Youngberg, 457 U.S. at 323.
The Court's inquiry is limited to deciding "whether the treatment or residence setting that actually was selected was a 'substantial departure' from prevailing standards of practice." Society of Good Will, 747 F.2d at 1248-49. "Liability may be imposed only when [a] decision by [a] professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such ajudgment." Youngberg, 457 U.S. at 323. Liability is not established when experts simply opine that "with appropriate supports, at least half of the over 510 CHDC residents are appropriate for a more integrated setting now." Plaintiff s Memorandum at 10 (citing Plaintiffs Consultant's Declaration, Exhibit 3 at 8-9.). Plaintiff cannot meet the Youngberg standard necessary to overcome the presumption of validity and, consequently, cannot demonstrate a basis for the intrusive relief that it seeks. The care and safety of individuals at CHDC, at the very least, demonstrate the exercise of professional judgment that is presumptively valid and aligned with contemporary, accepted professional judgment, practice, and standards.
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If the Court determines that a hearing on this matter is necessary, Defendants will offer testimony from treating professionals and nationally-recognized experts to demonstrate that professional judgment is exercised at CHDC. 16
3. Plaintiff Cannot Establish a Violation ofthe ADA. Olmstead does not require deinstitutionalization or a state to close its institutions. Despite Plaintiffs conjecture that "at least half of the over 510 CHDC residents are appropriate for a more integrated setting now[,]" deinstitutionalization of all eligible disabled persons is not required by the ADA. Plaintiffs Memorandum at 10. The Court in Conner v. Branstad, held that "if Congress had actually intended to require states to provide community based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so." Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993); See also U.S. v. Oregon, 782 F. Supp. at 514 ("[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the facility].").
L The ADA Does Not Give Plaintiff The Authority To Second-Guess Medical Decisions.
All decisions made by a professional are presumptively valid. Youngberg v. Romeo, 457 U.S. 307,232 (1982). "[L]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. Plaintiff has not alleged any such substantial deviation from professional judgment. The professional judgment standard is met even where experts disagree with care or treatment
16 Defendants reserve the right to move to exclude all or portions of Plaintiffs consultants' declarations and reports as well as the testimony of any or all of Plaintiffs consultants pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993) and the Court's Amended Scheduling Order.
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decisions that were actually made or where they think another course of conduct would have been better. Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2nd Cir. 1984). "[P]rofessional judgment has nothing to do with what course of action would make patients safer, happier, and more productive." Id. The issue is "not whether the optimal course of treatment, as determined by some experts, is being followed." Id.
The relief requested by Plaintiff necessarily involves a determination of the appropriateness of medical services, including psychiatric care. Treating physicians and other professionals have concluded that the medical needs of all residents at CHDC are being met. Such medical decisions are not reviewable under ADA or the Rehab Act. The Eight Circuit has specifically held that "a lawsuit under the Rehab Act or the Americans with Disabilities Act (ADA) cannot be based on medical treatment decisions" Burger v. Bloomberg, 418 F. 3d 882 (8th Cir. 2005) (citing Schiavo v. Schiavo, 403 F. 3d 1289, 1294 (lIth Cir. 2005) ("[t]he Rehabilitation Act, like the ADA, was never intended to apply to decisions involving ... medical treatment."); Fitzgerald v. Corr. Corp. of Amer., 403 F. 3d 1134, 1144 (lOth Cir. 2005) (inmate'S claims under Rehab Act and ADA were properly dismissed for failure to state claim as they were based on medical treatment decisions)).
In Buchanan, et al. v. Maine, the First Circuit noted that "[T]he [Rehabilitation Act and ADA] do not guarantee any particular level of medical care for disabled persons." Buchanan, et al. v. Maine, 469 F. 3d 158, 174 (lst Cir. 2006). That Court found that "[t]here [was] no evidence that Buchanan was either discriminated against or not provided the additional services [he sought] 'by reason of his disability.'" Id. In reaching that conclusion, the Circuit Court noted that there are:
two situations in which a challenge based on a treatment decision might be made: (1) the treatment decision was so unreasonable as
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to be arbitrary and capricious, raising an implication of pretext for some discriminatory motive, and (2) if not pretextual, the treatment decision was based on stereotypes of the disabled rather than an individualized inquiry as to the plaintiff's conditions ... There was nothing unreasonable about the treatment decisions in this case and certainly no stereotyping, so neither of these arguments is available. Buchanan, 469 F. 3d at 176. The holdings in these appellate cases are consistent with Justice Kennedy's concurring opinion in Olmstead. In his opinion, Justice Kennedy noted that "[I]t is undisputed that the State's own treating professionals determined that community-based care was medically appropriate for respondents." Olmstead v. L.C. ex reI. Zimring, 527 U.S. 581,609, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999). Not only did Olmstead not address whether medical treatment decisions are subject to review under the ADA and the Rehab Act, it effectively carved out medical decision-making from the scope of the ADA and Rehab Act. At CHDC, Defendants care for over 500 residents with significant medical issues, 24hours a day. Plaintiff cites to three isolated incidents to support its claim that professional judgment is not exercised. Plaintiff's Memorandum at 31. At trial, Defendants will show that Plaintiff should have had a primary care physician or nurse review medical records at CHDC, rather than the psychiatrists that it employed. Nevertheless, this list of isolated incidents, from across a broad spectrum of medical services provided at CHDC, does not show a substantial departure from accepted professional judgment and consequently does not prove a constitutional violation. See Williams v. Wasserman, 164 F. Supp. 2d 591, 619 (D. Md. 2001) ("It is true, and unfortunate, that the representative plaintiffs suffered injuries while they were hospitalized. Those injuries, however, do not necessarily indicate a constitutional violation."). Plaintiff's consultants' opinions are also unreliable because they are based on anecdotal stories and isolated
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incidents that do not rise to the level of a constitutional violation. Pennsylvania, 902 F. Supp. at 589 ("[I]solated examples of problems, while regrettable, do not establish constitutional violations.") (citing Shaw v. Strackhouse, 920 F.2d at 1143); Society for Good Will, 737 F.2d at 1245 ("Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.")
At best, Plaintiffs consultants' conclusions reflect a difference of professional opinion, but they do not establish a prima facie case that Defendants have violated the Youngberg standard. See Johnson v. Murphy, 2001 U.S. Dist. LEXIS 24013, at *54-55 (M.D. Fla. June 28, 2001); Williams, 164 F. Supp. 2d at 619; United States v. Oregon, 782 F. Supp. 502, 513 (D. Or. 1991). In most instances, Plaintiff s consultants simply disagree with the treatment decisions made by Defendants' treating professionals. It is insufficient for Plaintiff to merely insert conclusory language, such as "[i]n a substantial departure from accepted professional standards ...." That does not create grounds for the Court to find a constitutional violation.
In some cases, however, Plaintiffs consultants deliberately manipulate information to mislead the Court. For example, the Plaintiff inaccurately claims that:
CHDC residents die at the strikingly young age of 46.5 years. Exhibit 7 (Declaration of Edwin Mikkelson) at 8. According to comparative studies, 72 years of age is the approximate normal life span for individuals with developmental disabilities who live in an institution, a quarter of a century longer than residents of CHDC. Id. Plaintiffs Memorandum of Points and Authorities at 5. 17 This allegation is unsupported by the data and is outrageously false. It was obviously intended to create sensational newspaper headlines and to bias the Court, but it is baseless. See Argument 1. D above.
17 The Defendants object to having to reveal any of their experts' opinions prior to the date agreed upon by the Plaintiff. However, Defendants want to demonstrate the frivolous nature of Plaintiffs Motion.
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If the Court determines that a hearing on this matter is necessary, Defendants will introduce additional evidence to refute every allegation by Plaintiff regarding medical care provided at CHDC.
IL The ADA Does Not Give Plaintiff The Authority To Second-Guess Public Education Services.
Plaintiff cites Monahan v. State of Nebraska, for the proposition that "[t]he lack of appropriate special education services also causes irreparable harm." Plaintiffs Memorandum at 19 (citing Monahan v. State of Nebraska, 645 F.2d 592 (8th Cir. 1981». Plaintiff claims that the Court held that "plaintiff had established a threat of irreparable harm sufficient to support a preliminary injunction where the plaintiff student had been making 'little progress' in her thencurrent placement, and 'the resulting harm to [plaintiff] was irreparable and ... preliminary relief was appropriate to limit such harm." Id. Plaintiffs citation to this case is an attempt to mislead the Court.
That case was originally filed as Monahan v. State of Nebraska, 491 F. Supp. 1074 (D. Neb. 1980). The District Court in that case granted a preliminary injunction to the plaintiff solely on the basis of a Nebraska state statute that allegedly conflicted with a federal statute. Id. at 1095. That Court did not address the plaintiffs Rehab Act claim. See Monahan v. State of Nebraska, 687 F.2d 1164, 1167 (1982). The Defendant appealed that case to the Eight Circuit, which is cited by the Plaintiff in the instant matter. Plaintiffs Memorandum at 19 (citing Monahan v. State of Nebraska, 645 F.2d 592 (8th Cir. 1981) for the proposition: plaintiff had established a threat of irreparable harm sufficient to support a preliminary injunction where the plaintiff student had been making "little progress" in her then-current placement, and "the resulting harm to [plaintiff] was irreparable and ... preliminary relief was appropriate to limit
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such harm."). This citation is an attempt to mislead the Court regarding the current standard in the Eighth Circuit.
In Monahan v. State of Nebraska, 645 F.2d 592 (8th Cir. 1981), the Eighth Circuit remanded to the District Court. The District Court dismissed the case because the State of Nebraska had amended the allegedly conflicting state statute, rendering the relief plaintiff sought moot. Rose v. State of Nebraska, 530 F. Supp. 295, 299 (D. Neb 1981).18 That decision was appealed by the plaintiff because, like the Plaintiff in the instant matter, she believed she was entitled to relief under the Rehabilitation Act. In Monahan v. State of Nebraska, 687 F.2d 1164 (1982), the Eighth Circuit held '" [N]either the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds." Monahan v. State of Nebraska, 487 F.2d 1164, 1170 (8th Cir. 1982) (citing Southeastern Community College v. Davis, 442 U.S. 397,411 (1979).
The Court reasoned that it could not "read § 504 [of the Rehab Act] as creating general tort liability for educational malpractice, especially since the Supreme Court, in interpreting the [Education for All Handicapped Children Act], has warned against a court's substitution of its own judgment for educational decisions made by state officials." Id. at 1170-71.
Monahan v. State of Nebraska is authoritative precedent, relevant for to the instant matter, but not for the reasons cited by Plaintiff. In Monahan, the Eighth Circuit articulated a standard for the judging the deviation from accepted professional standards. The Court held that "either bad faith or gross misjudgment should be shown before a § 504 violation can be made out, at least in the context of education of handicapped children." Monahan v. State of Nebraska, 687 F.2d 1164, 1171 (1982). Plaintiff does not, and could not, allege that the provision of
18 The name change in the caption ofthis case was the result of relief being denied to the originally named plaintiff. Marla Rose was the remaining plaintiff. Rose v. State of Nebraska, 530 F. Supp. 295, 297 (D. Neb 1981).
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education services at CHDC is being done in bad faith or is a gross misjudgment. If the Court deems that a hearing is necessary on this issue, Defendants will offer evidence to show that all decisions surrounding the educational services at CHDC meet and exceed professional judgment.
IlL The PlaintiffDoes Not Have The Authority To Second-Guess The Use ofRestraints at CHDC.
The State is required only to provide such treatment as an appropriate professional would consider "reasonable in light of [a person's] liberty interests in safety and freedom from unreasonable restraints." Youngberg, 457 U.S. at 322; Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir. 1987); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d.1239, 1250 (2d Cir. 1984); Armstead v. Pingree, 629 F. Supp. 273,276 (M.D. Fla. 1986).
In determining what constitutes "reasonable care," the Supreme Court in Youngberg emphasized that the State "has considerable discretion in determining the nature and scope of its responsibilities." Youngberg, 457 U.S. at 317. Judicial deference must be afforded to the judgment that a qualified professional exercises: "It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." Id. at 321. In fact, decisions made by such professionals are presumptively valid. Id. at 323; P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir. 1990) (stating that courts should not "ascertain whether in fact the best course of action was taken").
The cases cited by Plaintiff in its Memorandum are not dispositive. In those cases restraints were used as punishments in contravention of federal regulations. See Thomas S. v. Flaherty, 902 F.2d 250,252 (4th Cir. 1990); See also Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir. 1987). Plaintiff has not, and could not, allege that professionals at CHDC use restraints as punishment. It is improper that Plaintiff would even cite to this type of caselaw, knowing that restraints are used at CHDC in accordance with all federal regulations.
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The only other basis for Plaintiffs claims that the use of restraints at CHDC is improper is its reliance on CMS regulations. Plaintiffs Memorandum at 37-38,41-42. As noted above, CMS is the federal agency responsible for developing regulations governing ICPIMR facilities. CMS has its own lawyers and administrative court to enforce its regulations and ensure that the
facilities it certifies comply with all relevant professional standards. By its citation and reliance
on CMS regulations, Plaintiff acknowledges that CMS standards reflect the professional standards that it is applying in this case. As noted above, CMS has certified that CHDC has complied with all relevant federal regulations, including management, client protections, facility staffing, active treatment services, client behavior and facility practices, health care services, physical environment, and dietetic services. See 42 CPR Part 483, Subpart I, Sections 483.400483.480. CMS determines compliance with its regulations using a survey process in which its surveyors conduct specific reviews of specific information. None of Plaintiffs consultants have had any experience as a CMS surveyor and their familiarity with the regulations is limited. The better qualified CMS surveyors have already concluded that CHDC's use of restraints meets aU professional standards incorporated into the CMS regulations.
In an effort to support its misleading argument, Plaintiff alleges that "CHDC utilizes 41 different forms of mechanical restraint, including straitjackets, 'restraint chairs,' and 'papoose boards.' Exhibit 26 at 4; Exhibit 27 at 4." Plaintiffs Memorandum at 14. Plaintiff, and its consultant, Dr. Matson, deliberately inflated this number for its salacious impact. See Argument 1. D. above.
If the Court deems that a hearing on these issues necessary, Defendants will offer evidence of the context for the use of restraints at CHDC, the applicable professional standards, and accurate factual evidence of the use of restraints at CHDC.
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4. The Requested Reliefwould be a Fundamental Alteration to Defendants' Programs that Serve All Disabled Citizens ofArkansas
Title II of the ADA, which applies to public services furnished by governmental entities, provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. An "integration mandate" contained in the DOJ's regulations implementing the ADA states that services must be provided "in the most integrated setting appropriate to the needs of the qualified individuals with disabilities." 28 c.P.R. § 35. 130(d).
In Olmstead, the U.S. Supreme Court held that "unjustified isolation" can constitute discrimination under the ADA only "when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.,,19 Olmstead v. L.C. ex reI. Zimring, 527 U.S. 581, 587. If a state is found to have discriminated in such a manner, it must make reasonable modifications to resolve the discrimination, but its responsibility to provide community-based treatment options "is not boundless." Id. at 603. A modification is not reasonable (and thus not required) if it will impair a state's ability to (1) maintain a range of facilities for the care and treatment of persons with diverse disabilities and (2) administer services and apportion resources equitably across a broad spectrum of need. Id. at 603-06.
19 Plaintiff ignores this language in Olmstead and argues that the input of treatment professionals is not required. Plaintiff's Memorandum at_. This contention cannot be reconciled with the plain language of Olmstead and further demonstrates the Plaintiff's attempt to mislead the Court with its erroneous repreresentations of the ADA.
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Moreover, the ADA does not require a state to implement modifications that entail a "fundamental alteration" of the state's overall program for administering mental health services. Id. at 603-04; 28 C.F.R. § 35. 130(b)(7) ("A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity."). "[T]he fundamental-alteration component ... allow[s] the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities." Olmstead v. L.C. ex reI. Zimring, 527 U.S. 581, 604.
Thus, to rebut primafacie evidence of discrimination under the ADA, a Defendants may show that they are making a reasonable modification through their "comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that movers] at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." Id. at 605-06. Alternatively, Defendants may demonstrate that the relief sought amounts to a "fundamental alteration" of its program. Id. at 603-04; See also Easley ex reZ. Easley v. Snider, 36 F.3d 297,305 (3d Cir. 1994); ARC of Washington State, Inc. v. Braddock, 427 F.3d 615,618 (9th Cir. 2005); Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479, at *36 (D. Conn. Jan. 5, 1999); Williams v. Wasserman, 937 F. Supp. 524, 531 (D. Md. 1996); Dees v. Austin Travis County Mental Health & Mental Retardation, 860 F. Supp. 1186, 1190 n.7 (W.D. Tex. 1994).
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Although the integration mandate requires states "to make 'reasonable modification in policies, practices, or procedures' that are 'necessary to avoid discrimination on the basis of disability... "', ARC of Washington State, Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005) (citing 28 C.F.R. § 35.13 O(b)(7)), such compliance does not include an obligation to make "modifications [that] would fundamentally alter the nature of the service, program, or activity." Id.; Olmstead v. L. C. by Zirnring, 527 U.S. at 605; Bryson v. Shumway, 308 F.3d 79,86 (lst Cir. 2002) (acknowledging that § 1396n(c) contemplates state waiver plans with definite limits on the number of individuals served, and the right of states to include a limit on the number of waiver slots they request.).
Olmstead does not require, as Plaintiff argues, deinstitutionalization of all eligible disabled persons. Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993) ("[I]fCongress had actually intended to require states to provide community based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so."); United States v. Oregon, 782 F. Supp. 502,514 (D. Or. 1991) ("[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the facility].").
If a hearing is deemed necessary by the Court, Defendants will produce evidence to demonstrate that the relief sought by Plaintiff will constitute a fundamental alteration. Defendants programs serve disabled people throughout the State of Arkansas. The Defendants carefully allocate resources to provide the most services to the most individuals. Plaintiff s requested relief is so onerous and broad that its effects may not even be able to be calculated. For example, among many other requests for relief, within 90 days, Plaintiff wants Defendants to hire "an independent team of doctoral-level behavioral clinicians with actual training and
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experience in contemporary, evidence-based behavioral management programs." Plaintiffs

Memorandum at 46. The purpose of that team would be to review treatment decisions by

licensed psychologists currently treating CHDC residents. Id. There is the obvious financial

burden that this type of requirement would have. This requirement, like all of the requests made

by Plaintiff, would take resources away from other programs that Defendants operate. It may

also be a challenge to recruit a sufficient number of professionals to comprise the Plaintiffs

"team." The Plaintiff appears to have specific ideas for the type of individuals it wants on its

"team," but it has no suggestion how to recruit them. That burden will be on the Defendants.

The creation of such a team would fundamentally alter the system that exists at CHDC. As noted

above, if the Court deems that a hearing in this matter is necessary, Defendants will offer

evidence to support its fundamental alteration defense at that hearing.

B.

NO IRREPRABLE HARM

The second Dataphase factor is the threat of irreparable harm to the movant absent the

injunction. Dataphase, 640 F.2d at 114. In the Eighth Circuit, "a party moving for a preliminary

injunction is required to show the threat of irreparable harm." Baker Elec. Co-op., 28 FJd at

1472 (citing Modem Computer Sys., 871 F.2d at 738, and Dataphase). The lack of irreparable

harm is sufficient ground for denying or vacating a preliminary injunction. Aswegan v. Henry,

981 F.2d 313, 314 (8th Cir.1992) (citing Modem Computer Sys., 871 F.2d at 738). Stated

differently, "[t]he threshold inquiry is whether the movant has shown the threat of irreparable

injury." Glenwood Bridge, 940 F.2d at 371 (quoting Gelco Corp. v. Coniston Partners, 811 F.2d

414,418 (8th Cir.1987)). More specifically, the Eighth Circuit has held that the movant's failure

to sustain its burden of proving irreparable harm ends the inquiry "and the denial of the

injunctive request is warranted." Gelco Corp. v. Coniston Partners, 811 F.2d 414, 420. Accord

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Modem Computer Sys., 871 Fold at 738. The Eighth Circuit has also explained, "the basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Edold 988 (1959). Thus, to warrant a preliminary injunction, the moving party must demonstrate a sufficient threat of irreparable harm. See Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir.1996).
Plaintiffs delay in seeking a Preliminary Injunction "belies any claim of irreparable injury pending trial." Hubbard Feeds v. Animal Feed Supplement, 182 F.3d 598 (8th Cir. 1999); See also Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964, 968 (2d Cir. 1995) (Plaintiffs delay "undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury." Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 903 (7th Cir. 2001) ("Delay in pursuing a preliminary injunction may raise questions regarding the plaintiffs claim that he or she will face irreparable harm if a preliminary injunction is not entered."); Palm Beach County Environmental. Coalition v. Florida, 587 F. Supp. 2d. 1254, 1257 (S.D. Fla. 2008) (stating that delay in both seeking injunctive relief when the substantial issues were known to the plaintiffs and failure to timely serve defendants "belie[] plaintiffs' argument that there will be immediate injury absent injunctive relief'); Golden Bear Int'I, Inc. v. Bear U.S.A., Inc., 969 F. Supp. 742, 748 (N.D. Ga. 1996) (Camp, J.) ("Preliminary injunctions are issued to prevent imminent and inevitable injury to the movant, and undue delay 'speaks volumes about whether a plaintiff is being irreparably injured.''') (citation omitted).
The standard is well-settled, Plaintiff is required to show a "real and immediate" threat of substantial, irreparable harm before the Court should intervene. O'Shea v. Littleton, 414 U.S. 488,494 (1974); Watkins Inc. v. Lewis, 346 F.3d 841 (8th Cir. 2003) (Failure to show
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irreparable harm is an independently sufficient ground upon which to deny a preliminary
injunction.); Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297 (8th Cir. 1996) (Failure to
show irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary
injunction.) In the instant matter, Plaintiff fails to identify any specific individual at risk any
actual, imminent harm or danger. 2o If Plaintiff had identified any such individual during its tours
ofCHDC or in its review of documents, the Defendants would certainly have moved on it own
accord to protect that individual, without requiring the intervention from the Court?1
On the issue of actual harm, Plaintiff simply "takes us into the area of speculation and
conjecture," O'Shea, 414 U.S. at 497, and does nothing but recite generalities such as, "[l]ong
term, unnecessary segregation causes irreparable harm." Plaintiff's Memorandum at 17 (citing
Plaintiff's consultant's declaration, Exhibit 12 at 22). In short, Plaintiff has not alleged imminent
harm to any particular person served by Defendants. Plaintiff's broad policy initiative to
encourage more community treatment does not meet the test for irreparable injury. Issuance of
an injunction on this basis would be improper because the relief, even as articulated by Plaintiff,
20 In fact, the proposed re1iefthat Plaintiff seeks to be implemented immediately risks far more harm to the developmentally disabled citizens of Arkansas than do current practices by the Defendants. 21 The absence of any alleged specific injury to any particular individual also raises an issue as to ripeness of Plaintiff's request for injunctive relief. A claim is not ripe for adjudication if it depends on contingent future circumstances that may not occur as anticipated, or may not occur at all. Texas v. United States, 528 U.S. 296,300 (1998). A ripeness challenge requires a court to assess both the fitness of the issues for
consideration and the hardship to the parties of withholding the court's consideration. .!d. at 300-01. The purpose of the ripeness doctrine, among
other things, is to prevent judicial interference before a proceeding has been formalized and its effects felt in a concrete way by the parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). The Eighth Circuit has repeatedly stated that a case is not ripe ifthere is no showing that the injury is "direct, immediate, or certain to occur." Public Water Supply District No. 10 ofCass Countv, Mo. v. Citv of Peculiar, Mo.,345 F.3d 570, 573 (8th Cir.2003). "A claim is not ripe for adjudication ifit rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." KCCP Trust v. Citv of North Kansas Citv, 432 F .3d 897, 899 (8th Cir.2005) (quoting Texas v. United States, 523 U.S. 296 (1998)). Accordingly, courts examining the ripeness of a particular case must consider "both the fitness of the issues
for judicial decision and the hardship to the parties of withholding court consideration." .!d. (internal citations omitted). Finally, "[t]o be ripe for
decision, the harm asserted must have matured enough to warrant judicial intervention. The plaintiffs need not wait until the threatened injury occurs, but the injury must be certainly impending." Paraguad v. St. Louis Housing Authoritv. 259 F .3d 956,958 (8th Cir.2001). In this case, the Plaintiff presents only anecdotal evidence of isolated injuries that have occurred in the past and vaguely asserts that there is potential for harm to occur in the future: The Plaintiffs' claims are contingent upon the occurrence of future events. The Plaintiff cannot demonstrate that it is facing a direct, immediate injury, or an injury that is certain to occur, particularly where the underlying facts in the allegations are as flawed as those proffered by Plaintiff and its consultants. For example, the Plaintiff requests an injunction preventing the Defendants from admitting any additional children into CHDC, but Plaintiff has not identified any particular individual whose admission it seeks to block. Plaintiff cannot know the implications of potentially blocking an admission to CHDC because it has not even considered representing the interests of any particular individual. Plaintiff has an obligation to show that it is requesting relief that is related to an actual or imminent injury being incurred by someone. Instead, Plaintiff supports its allegations and request for re1iefby offering platitudes and questionable professional standards from its consultants. Neither Plaintiff nor its consultants did a complete analysis of medication administration or the use of restraints at CHDC, or the specific impact on any particular individual residing at CHDC.
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is amorphous. Milliken v. Bradley, 418 U.S. 717, 738 (1974) (quoting Swann v. CharlotteMecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971) (The power of the federal courts to restructure the operation of local and state governmental entities is not plenary. It "may be exercised 'only on the basis of a constitutional violation. "'); See also Rizzo v. Goode, 423 U.S. 362, 377 (1976)
In an effort to support its position, Plaintiff cites several cases, from various jurisdictions, but Plaintiff cannot show the constitutional harm required in Youngberg. The Plaintiff cites Henderson v. Bodine Aluminum, Inc. for the proposition that "[d]eath and permanent injury cause by failure in medical care constitutes irreparable harm." Plaintiffs Memorandum at 16 (citing Henderson v. Bodine Aluminum, Inc., 70 F.3d 958,961 (8th Cir. 1995)). The plaintiff in Henderson was denied medical coverage by her insurance company sought an injunction to allow her to have treatment for breast cancer. Henderson, 70 F.3d 958,961. In the instant matter, Plaintiff has made no such allegations of a life-threatening illness.
Plaintiffs citation to Rodde v. Bonta simply does not support its position, but it does support the Defendants' position. In Rodde, the Ninth Circuit held the shutting down of defendant's only hospitals designed to serve disabled individuals violated Title II because the services designed for the general population, while available to the disabled, "would not adequately serve the unique needs of the disabled who therefore would be effectively denied services that the non-disabled continued to receive." Rodde, 357 F.3d 988,998 (9th Cir. 2004). The relief that Plaintiff seeks through its motion would create the same problems that the Ninth Circuit warns against in Rodde.
Plaintiffs citation to National Ass'n of Psychiatric Health Systems v. Shalala, is equally misleading. That case did not hold, as Plaintiff cites, "[t]he inappropriate use of mechanical restraints causes irreparable harm." Plaintiffs Memorandum at 16. Plaintiff has baldly
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misrepresented that case to the Court. In Shalala, private hospitals brought an action against the Secretary of Health and Human Services seeking to enjoin a final rule requiring a practitioner to evaluate a patient, face-to-face, within one hour after the patient has been placed in restraints or in seclusion. Shalala, 120 F.Supp.2d 33, 44 (D.D.C.2000). The Court denied the motion for preliminary injunction because the plaintiffs "failed to show what, if any, irreparable harm would befall them should the Court refuse to enter an injunction." Id. at 44.
Plaintiff cites Parham v. J.R. in an attempt to support its claim that children at CHDC are being isolated. Plaintiffs Memorandum at 17 (citing Parham v. J.R., 442 U.S. 584,627-28 (1979). In Parham the U.S. Supreme Court evaluated Georgia's procedural due process that was afforded children prior to their admission to the state mental health facilities. The Court held that the State's due process procedures were constitutional. Id. at 620. Plaintiffs citation to the dissenting opinion of the Court shows Plaintiffs desperate attempt to manipulate this Court by emotionally referring to Justice Brennan's concern that the needs of children be met. Defendants already provide a broad spectrum of unique services to the children they serves at CHDC and throughout the State of Arkansas.
Plaintiffs citation to Disability Advocates Inc. v. Patterson, is irrelevant. That case addressed the State of New York's Olmstead plan and its waiver services. In the 128-page opinion from the Eastern District, the Court does not mention "irreparable harm" anywhere. See Disability Advocates Inc. v. Patterson, 653 F. Supp.2d 184 (E.D.N.Y. 2009).
Plaintiff has not identified any actual or imminent harm that will incur. Its specious claims do not establish the constitutional harm required by Youngberg. If the Court deems that a hearing on this matter is necessary, Defendants will offer factual and expert evidence to demonstrate that Plaintiff s argument of irreparable harm has no merit.
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C. THE DAMAGE THAT AN INJUNCTION WILL CAUSE CHDC, DDS, DHS, AND THE STATE OF ARKANSAS FAR OUTWEIGHS THE THREATENED INJURY TO PLAINTIFF.
The third Dataphase factor requires the Court to balance the harm to the Plaintiff if the requested relief is not granted against the harm to the Defendants and other interested parties if the injunction is issued. Dataphase, 640 F.2d at 114. The "balance of harms" analysis is not identical to the "irreparable harm" analysis. Pottgen v. Missouri State High Sch. Activities Ass'n., 40 F.3d 926, 929 (8th Cir.1994). Irreparable harm focuses on the harm or potential harm to the movant. Dataphase, 640 Fold at 114. In contrast, the balance of harms analysis examines the harm of granting or denying the injunction upon both of the parties to the dispute and upon other interested parties, including the public. Id.; See also Glenwood Bridge, 940 F.2d at 372 (considering the effect of granting or denying the injunction on the public's interest in a public works construction project as well as upon the parties in the balance of harm analysis); Modern Computer Sys., 871 F.2d at 737-38 (harm to other interested parties also considered).
In conducting the "balance of harms" analysis required under Dataphase, an illusory harm to the movant will not outweigh any actual harm to the rionmovant. Frank B. Hall & Co. v. Alexander & Alexander, Inc., 974 F.2d 1020, 1023 (8th Cir. 1992). To determine what must be weighed, courts have looked at the potential economic harm to each of the parties and to interested third parties of either granting or denying the injunction as relevant. Baker Elec. CoQlb 28 F.3d at 1473. Present harm as the result of past misconduct is not sufficient to justify the injury to the non-movant of granting a preliminary injunction requiring some additional corrective action because such relief "goes beyond the purpose of a preliminary injunction." Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 Fold 484, 489, 490 (8th Cir. 1993).
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Plaintiff has failed to articulate any irreparable harm. Therefore, it cannot show that its hardship outweighs the potential hardship to the Defendants, the individuals served by Defendants, the families and friends of the individuals served by Defendants, and the taxpayers of the State of Arkansas. Yakus, 321 U.S. 414, 440. ("The award of an interlocutory [i.e. preliminary] injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff.")
The balancing of the equities weighs heavily in favor ofCHDC, DDS, DHS, and the State of Arkansas. The Defendants are operating a statewide system of care for the developmentally disabled. Defendants provide numerous services for many unique individuals. The allocation of resources is carefully planned to provide the most services for the most individuals. Plaintiff arrogantly indicates in its Memorandum that the relief it seeks will "cause no significant harm to Defendants." Plaintiffs Memorandum at 42. The Plaintiff has not even made not effort to understand the services that the Defendants provide. In balancing the hardships, the Court should consider whether the injunctive relief being sought is prohibitory or mandatory, as is the case here. See generally llA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 2948.2 (2d ed. 1995 & Supp. 2009).
The purpose of a preliminary injunction is to preserve the status quo pending final determination of the lawsuit. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). See also Rathmann Group v. Tanenbaum, 889 F.2d 787, 789-90 (8th Cir.1989) (quoting Ferry-Morse Seed Co. v. Food Com, Inc., 729 F.2d589, 593 (8th Cir.1984) "'The primary function ofa preliminary injunction is to preserve status quo until, upon final hearing, a court may grant full effective relief. "') "Only in rare instances is the issuance of a mandatory preliminary injunction proper." Harris v. Wilters, 596 F.2d 678,680 (5th Cir. 1979); See also Wetzel v. Edwards, 635
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F.2d 283,286 (4th Cir.l980); Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1299 (lOth Cir.l980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114,69 L.Ed.2d 975 (l981); Martinez v. Mathews, 544 F.2d 1233,1243 (5th Cir.l976). "Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party." Martinez, 544 F.2d 1233, 1243.
In the instant matter, the Plaintiff seeks substantially all of the same relief that it could hope to receive after a full and fair trial. In cases where, as here, the preliminary injunction would give Plaintiff all or most of the relief to which it would be entitled if it were successful at trial on the merits, preliminary relief may be "excessively burdensome." Wright & Miller, supra, § 2948.2. The Plaintiff is not seeking to stop the Defendants from engaging in any particular activity, but rather seeks to use the Court's power to impose affirmative requirements on the Defendants that reflect Plaintiffs policy preferences for the State of Arkansas's administration of programs for the developmentally disabled. Plaintiff here seeks what the Eleventh Circuit rejected in Newman v. Alabama: to make State officials "mere functionaries in carrying out the court's commands." 683 F.2d at 1320.
"Federal courts operate according to institutional rules and procedures that are poorly suited to the management of state agencies." Angela R. v. Clinton, 999 F.2d 320,326 (8th Cir. 1993). Accordingly, courts "should refrain from micromanaging the state and its agencies." United States v. Missouri, 535 F.3d 844, 851 (8th Cir. 2008). In the mental health context, the U.S. Supreme Court has warned that "interference by the federal judiciary with the internal operations of these institutions should be minimized." Youngberg, 457 U.S. at 322.
The U.S. Supreme Court has cautioned, principles of federalism must be respected:
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Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the "special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law" .... When the frame of reference moves ... to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief Rizzo v. Goode, 423 U.S. 362,378-79 (1976) (citations omitted). These principles apply when "injunctive relief is sought against ... those in charge of an executive branch of an agency of state or local governments." Id. at 380. "[F]ederal courts should accord deference to state policymakers' programmatic and political funding decisions regarding mental health funding." Frederick L. v. Dep't of Pub. Welfare ofPa., 364 F.3d 487,493 (3d Cir. 2004); See also Sanchez, 416 F.3d at 1067 (quoting from Olmstead that "a State must have sufficient leeway 'to maintain a range of facilities and to administer services with an even hand"'). Even in the Olmstead decision, the Court recognized "the federalism costs inherent in referring state decisions regarding the administration of treatment programs and the allocation of resources to the reviewing authority of the federal courts," Olmstead, 527 U.S. at 610 (Kennedy, J. concurring). Justice Kennedy noted that respect should be granted to states to determine how best to provide appropriate community-based mental health programs "taking into account the resources available to the State and the needs of others with mental disabilities." Id. at 607 (plurality opinion). "It is of central importance, then, that courts apply [the Olmstead] decision with great deference to the medical decisions of the responsible, treating physicians and, as the Court makes clear, with appropriate deference to the program funding decisions of state policymakers." Id. at 610 (Kennedy, J., concurring).
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Plaintiff contends that the balancing of the equities favors it because if its relief is granted, "CHDC must simply invest the minimum resources and administrative support necessary to protect the lives and safety of its residents." Plaintiffs Memorandum at 43. Plaintiff has no idea what type of resources and supports are necessary to protect the lives and safety of the residents at CHDC and the other individuals served by Defendants. In Olmstead, the United States, the same Plaintiff that now seeks an injunction, filed an amicus curiae to the U.S. Supreme Court stating "a comparison so simple overlooks costs the State cannot avoid; most notably, a 'State ... may experience increased overall expenses by funding community placements without being able to take advantage of the savings associated with the closure of institutions.'" Olmstead, 527 U.S. at 604 (quoting Br. for U.S. as Amicus Curiae at 21). Plaintiff dismissive comment, that its reliefwill "cause no significant harm to Defendants," is a clear indication that the Plaintiff does not understand the services that Defendants provide or the type of relief that it seeks.
If the Court deems that a hearing is necessary, the Defendants will offer evidence ofthe depth and breadth of the services that they provide for the disabled and the careful allocation of resources by the Defendants. Defendants will also introduce evidence of the full impact that Plaintiffs careless request for relief would actually have on the Defendants and the individuals that Defendants serve.
D. THE PUBLIC INTEREST REQUIRES THAT PLAINTIFF'S REQUEST FOR INJUNCTION RELIEF BE DENIED
The final Dataphase factor requires the Court to consider the public interest. Dataphase, 640 F.2d at 114; Pottgen v. Missouri State High School Ass'n, 40 F.3d 926,929 (8th Cir. 1994); Branstad v. Glickman, 118 F. Supp. 2d 925,943 (N.D. Iowa 2000). The public interest factor invites the court to consider broad observations about conduct that is generally recognizable as
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costly or injurious. Id. This factor also allows the Court to consider the public's interest in minimizing unnecessary costs to be met from public coffers. B & D Land and Livestock Co. v. Veneman, 231 F.Supp.2d 895,912 (N.D. Iowa 2002).
In this case, the public interest does not weigh in favor of granting a preliminary injunction. "Where a Plaintiff seeks an injunction that will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (citations omitted). Even if the Court finds that a violation of the law has occurred, not every violation of the law entitles a Plaintiff to an injunction. See e.g. TVA v. Hill, 437 U.S., at 193,98 S.Ct., at 2301; Hecht Co. v. Bowles, 321 U.S., at 329,64 S.Ct., at 591.
Plaintiff s argument that the public interest favors granting the injunction misses the point. Plaintiff argues that if its allegations are true, then generally it would be in the public interest to grant the relief it seeks. Plaintiff does not even attempt to argue that the preliminary relief it seeks is justified. There is no public interest that is served by granting the preliminary injunction that Plaintiff seeks.
Plaintiff cites Jaffe v. Redmond for the proposition that "[t]he mental health of our citizenry, no less than its physical health, is a public good of transcendent importance." Plaintiffs Memorandum at 44 (citing Jaffe v. Redmond, 518 U.S. 1, 11 (1996)). Defendants do not dispute this proposition. The proposition does not support Plaintiff s position though.
The Plaintiff is required to show that a preliminary injunction is in the public interest, not that "the mental health of our citizenry... is a public good....." Plaintiff has not even attempted
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to put forth an argument that, specifically, granting a preliminary injunction would be in the public good.
Similarly, Plaintiff cites Nat'l Ass'n of Psychiatric Health Systems v. Shalala for "finding that the public interest supported upholding a rule that required medical review of restraints after one hour because 'restraints and seclusion are dangerous interventions' and 'severe psychological and physical injuries' result from the inappropriate use of restraints' [sic]" Plaintiff's Memorandum at 44 (citing Nat'l Ass'n of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d. 33,45 (D.D.C. 2000)). CHDC has the same policy. Plaintiff is well aware of that policy and has not even alleged that CHDC administers its policy in any other way. At a hearing on this matter, CHDC will introduce evidence to document its policy that if a restraint is necessary it is only administered in accordance with professional judgment and never for more than an hour.
In Arkansas Medical Society v. Reynolds, the District Court enjoined the State's plan to reduce its reimbursement rates to Medicaid providers. The plaintiff produced evidence that reducing the reimbursement rate for specific providers would impact their ability to receive services. The Court in Reynolds granted the injunction to "maintain the status quo with respect to those services until plaintiffs' claims [could] be adequately investigated and adjudicated." Arkansas Medical Society v. Reynolds, 834 F. Supp. 1097, 1103 (E.D. Ark. 1992)). In the instant matter the Defendants are not seeking to alter the status quo. Instead, it is the Plaintiff who seeks to change the status quo. Defendants contend that the status quo should be maintained. The trial in this matter is scheduled for September 2010. As discussed above, Plaintiff's allegations do not allege any irreparable harm.
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Like many of the cases cited in Plaintiffs Memorandum, Plaintiff has miscited Reynolds. Plaintiff cites Reynolds for holding that '" [i]n view of the public interest involved, medical care to patients, the Court feels that the weight of discretion is on the side of granting the motion [for preliminary injunction].' (internal citations omitted)." Plaintiffs Memorandum at 44 (citing Arkansas Medical Society v. Reynolds, 834 F. Supp. 1097, 1102, 1103-04 (E.D. Ark. 1992)). Contrary to Plaintiffs representation, Reynolds did not reach such a conclusion. The Court in Reynolds specifically held that "It cannot at this time be said who the balance of harm and the public interest favors, and the Court makes no findings in that regard." Reynolds at 1103.
Plaintiffs citation appears to be a quote from Arkansas Society of Pathologists v. Harris, No. LR-C-80-02 (E.D. Ark. June 4, 1980). In that case the Arkansas Society of Pathologists successfully enjoined a proposed regulatory change proposed by HCFA that would have required the pathologists to bill hospitals for their services instead of directly billing patients, as their practice had been. Ultimately, Congress amended the Medicare Act to allow its proposed regulatory change?2 Plaintiffs misquotation of case law represents the way in which it has carelessly asserted claims against the Defendants. Plaintiffs reckless accusations undeimine the hard work that is done everyday at CHDC, DDS, DHS and the entire state of Arkansas to provide all levels of service to developmentally disabled individuals.
22 Congress enacted §108 of the Tax Equity and Fiscal Responsibility Act of 1982. Section 108 directed the secretary of the Department of Health and Human Services to distinguish between services performed by hospital-based physicians
(A) which constitute professional medical services, which are personally rendered for an individual patient by a physician and which contribute to the diagnosis or treatment of an individual patient and which may be reimbursed as physician services under Part B of [Medicare], and (B) which constitute professional services which are rendered for the general benefit to patients in a hospital or skilled nursing facility and which may be reimbursed only on a reasonable cost basis .... Under subsection B of this section, pathologists were to look to hospitals for compensation for professional component services to Medicare patients from payment to hospitals made under Part A of Medicare.
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The Defendants provide critical services for the developmentally disabled in the State of Arkansas. They provide a complete spectrum of services for the developmentally disabled. CHDC has been certified by CMS since that federal agency has offered the certification and for the past thirteen (13) years CHDC has sought, and obtained, private accreditation from CARF. Plaintiff does not have the skill or expertise to make recommendations to change the care provided to the residents of CHDC or any individual served by Defendants programs. Yet, Plaintiff would have the Court enter an injunction to disrupt the programs operated by Defendants without any consideration for the impact that those changes would have on the individuals served by Defendants. Among other things, Plaintiffs relief would also usurp the rights of parents and guardians to make decisions for their loved ones. Notably, in over fifty (50) exhibits attached to Plaintiffs Motion for Preliminary Injunction and Memorandum, there is not a single affidavit from a parent or guardian of a child at CHDC. If a hearing on this matter is deemed necessary, the Defendants will produce, among other witnesses, parents and guardians who will be impacted by the Plaintiffs wanton request for relief.
CONCLUSION Defendants respectfully move the Court to enter an Order striking Plaintiffs belated and inappropriate Motion for Preliminary Injunction. Plaintiffs Motion has no basis in law or fact and was not filed in good faith. Plaintiffs Motion for Preliminary Injunction is a transparent attempt to disrupt Defendants trial preparation, to present allegations without opportunity for a fair rebuttal, and to obtain relief it would not otherwise receive in a full and fair trial on the merits. In an attempt by Plaintiff to avoid the reliable and compelling opinions of the Defendants' experts, pursuant to the agreed upon Scheduling Order, the Plaintiff has chosen to
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try to ambush the Defendants before their defense can be completed. The evidence, however, reveals the lack of urgency and the lack of merit to this request for Preliminary Injunction.
In the alternative, the Defendants request an enlargement of time for the Defendants to respond to Plaintiffs Motion to (a) allow the Defendants the full and fair opportunity to complete their experts' reports as agreed to by the parties, (b) allow the Defendants to complete their expert reports that are expected to directly contradict the findings of Plaintiff s experts before ruling on the Plaintiff s Motion, and (c) allow the Defendants sufficient time to conduct other discovery and to respond to the factual misrepresentations made in the Plaintiffs Motion.
In any case, the Plaintiff cannot meet the requirements for obtaining a preliminary
a injunction. If hearing is required, Defendants will effectively dispute all of the allegations of
Plaintiff s Motion. The request for a preliminary injunction should be denied.
Respectfully submitted, Counsel for Defendants /s/ Thomas B. York THOMAS B. YORK The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 (717) 236-9675 (717) 236-9675 (fax) tyork@yorklegalgroup.com Bar # (PA): 32522
DUSTIN McDANIEL Attorney General
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Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 55 of 57 By: /s/ Lori Freno, Sr. Asst. Attorney General Bar Number 97042 Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, AR 72201 (501) 682-1314 E-mail: lori.frenora{arkansasag.gov
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CERTIFICATE OF SERVICE
I, Thomas B. York, hereby certify that on this 23rd day of March 2010, I served a true and correct copy of Defendants Brief In Support of Defendants ' Motion To Strike Plaintiffs Motion For Preliminary Injunction or, In the Alternative, Defendants' Motion For An Enlargement Of Time To Respond To Plaintiffs Motion For Preliminary Injunction via the Courts electronic filing system, upon the following:
Arethea Coles, Esquire U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Room 4300 Washington, D.C. 20530 Atethea.coles@usdoj.gov
Benjamin Tayloe, Jr., Esquire U.S. Department of Justice -Civil Rights Division 950 Pennsylvania Avenue, N.W. Room 4300 Washington, DC 20530 Benjamin.tayloe@usdoj.gov
Christopher Cheng, Esquire U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Room 4300 Washington, D.C. 20530 Christopher.cheng@usdoj.gov
Jacqueline Cuncannan, Esquire U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Room 4300 Washington; D.C. 20530 Jacqueline.cuncannan((l{doj .gov
Kerry Krentler Dean, Esquire U.S. Department of Justice - Civil Rights Division 950 Pennsylvania Avenue N.W. Room 4300 Washington, D.C. 20530 Kerry.k.dean@usdoj.gov
Laura L. Coon Senior Trial Attorney U.S. Department of Justice - Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 Laura.Coon@usdoj.gov
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Case 4:09-cv-00033-JLH Document 50 Filed 03/23/10 Page 57 of 57 Vincent P. Herman Trial Attorney U.S. Department of Justice Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 Vincent.Nerman@,doj.gov Richard Pence, Jr., Esquire U.S. Attorney Office - Little Rock Eastern District of Arkansas Post Office Box 1229 Little Rock, AR 72203-1229 Richard.pence@doj.gov /s/ Thomas B. York Thomas B. York
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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA

PLAINTIFF

v.

Case No. 4:09CV00033 JLH

STATE OF ARKANSAS; THE HONORABLE MIKE BEEBE, Governor of the State of Arkansas, in his official capacity only; JOHN M. SELIG, Director of the Arkansas Department of Human Services, in his official capacity only; JAMES C. GREEN, PH.D., Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only; and CALVIN PRICE, Superintendent of the Conway Human Development Center, in his official capacity only

DEFENDANTS

OPINION AND ORDER

The United States of America has moved for a preliminary injunction in connection with its

complaint filed on January 16, 2009, against the State of Arkansas; Mike Beebe, Governor of

Arkansas; John Selig, Director of the Arkansas Department of Human Se rvices (ADHS); James

Green, Ph.D., Director of the Arkansas Division of Developmental Disabilities Services; and Calvin

Price, Superintendent of the Conway Human Development Center.1 The United States asserts that

CHDC residents live under i mminent and serious threats of harm to their life, health, safety , and

liberty; have suffered violations of the Americans with Disabilities Act; and are exposed to death and

injury as a result of unconstitutional medication management and restraint practices. The United

States asks the Court to halt further admissions of children to the CHDC and to impose immediate

relief protecting all CHDC r esidents from the facility’s medication management and restraint

1 The complaint asserts claims against the named individuals only in their respective official capacities.

practices. In response, the defendants have filed a motion to strike the United States’ motion for preliminary injunction, arguing in part that the United States’ delay in se eking a preliminary injunction belies any claim of irreparable harm. The United Stateshas responded to the defendants’ motion to strike.2 For the following reasons, the United States’ motion for a preliminary injunction is denied.
I. The Conway Human Development Center (CHDC), located in Conway, Arkansas, is certified as an Intermediate Care Facility for the Mentally Retarded (ICF/MR) and houses approximately 510 individuals with developmental disabilities. On November 8, 2002,the Civil Rights Division of the Department of Justice informed the State of Arkansas ofits intent to conduct a formal investigation into the conditions at CHDC pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. The Civil Rights Division conducted onsite inspections in February, April, and May 2003 with expert consultants from various professional backgrounds. In addition to the site visits, the Civil Rights Division reviewed policies and procedures, interviewed administrators and staff, and observed CHDC residents. The CiviRl ights Division conveyed preliminary findings after each site visit in February, April, and May 2003. On April 21, 2004, Assistant AttorneyGeneral R. Alexander Acosta issued a 50-page letter reporting the findings of the Civil Rights Division. Those findings included the following:
2 Although the defendants characterize their response as a motion to strike and ask for an extension of time to respond more fully, their motion to strike provides a substantive response to the United States’ arguments for a preliminary injunction. Therefore, the Court will treat the defendants’ motion to strike as a response to the motion for preliminary injunction, and the United States’ response to the motion to strike as a reply to the defendants’ response.
2

[W]e find that residents of [ CHDC] suffer significant harm or risk of harm from shortcomings in the facilities’ health care, habilitative treatment services, restraint practices, and protection from harm policies. We further find that the State fails to provide residents with required education services pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401 et seq. Finally, it appears that the State does not provide services to individuals with disabilities in the most integrated setting appropriate to individual residents’ needs. See Olmstead v. L.C., 527 U.S. 581 (1999); Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 28 C.F.R. § 35.130(d).
The 50-page document then went on to describe in detail the bases for the findings.
On January 16, 2009—more than six years after initiating its investigation of CHDC, and
almost five years after issuing its findings from the investigation—the United States commenced the
instant action against the defendants. The complaint alleges that the defendants have failed and are
continuing to fail to do the following:
a. Provide reasonably safe co nditions and ensure t he reasonable safety and personal security of CHDC residents.
b. Provide the CHDC r esidents with that level of habilitation and training, including behavioral and related training programs, necessary to protect the residents’ liberty interests and ensure their safety and freedom from undueor unreasonable restraint.
c. Ensure that restraints are administered to residents by appropriately qualified professionals in keeping with accepted professional standards, and are not used as punishment, in lieu of treatment, or for the convenience of staff.
d. Adequately supervise residents in restraints to protect them from harm.
e. Adequately assess individuals residing in the CHDC to ascertain whether they are receiving treatment in the most in tegrated setting appropriate for their individual needs.
f. Ensure that residents whom professionals determine should be placed in the community, and who do not oppose such placement, are placed there.
3

g. Ensure that residents are evaluated and provided the necessary support and services to receive a free and appropr iate public education in the le ast restrictive environment.
h. Provide adequate psychological and behavioral services; adequate medical, neurological, and nursing services; adequate psychiatric services; adequate habilitation and therapy services, including physical therapy, occupational therapy, speech and language therapy, and nutritional services; and adequate protections from harm.
The complaint then alleges violations of the Fourteenth Amendment’s Due Process protections; the
Americans with Disabilities Act; and the Individuals with Disabilities Education Act.
Finally, on March 9, 2010—more than one year after filing its complaint, and more than
seven years after initiating its investigations into the CHDC—the United States filed the pending
motion for a preliminary injunction. The United States filed its motion only after its e xperts
completed their reports. According to the United States, immediate injunctive relief is
necessary to stop ongoing, severe, and irreparable harm. That relief must target the conditions at CHDC that place all residents at the most imminent risk—conditions that have led to death, organ failure, and exposure to lethal sideeffects of medication and have exposed individuals to needless and harmful restraints—while requiring that the State ensure that no more of its youngest and most vulnerable citizens are exposed to this unsafe and inappropriately segregated institutional environment.
The United States asserts that the delayed timing of i ts motion is due, i n part, to only recently
obtained “substantial and alarming evidence that CHDC residents face increasing and grave risk of
harm with each and every day that deficiencies are ignored.” T his evidence includes emails
produced in late 2009 documenting the defendants’ intention to increase the number of children
housed in state institutions; an incident in Oct ober 2009 in which a reside nt was hospitalized for
lithium poisoning; and an admission in December2009 from the CHDC’s Chief of Psychology that
approximately 70-80 CHDC residents have treatment programs that include restraint use.
4

II. In considering whether to grant a preliminary injunction, a court must consider four factors: (1) the probability that the movant will succeed on themerits; (2) the threat ofirreparable harm; (3) the state of balance between the threat of harm and the injury that granting the injunction will inflict on other parties; and (4) the public interest. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). The district court’s inquiry is an equitable one, requiring the court to consider “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Velek v. Arkansas, 198 F.R.D. 661, 663 (E.D. Ark. 2001) (quotingDataphase, 640 F.2d at 113). No single factor is determinative, and the factors are not a rigid formula. Id. The party seeking a preliminary injunction bears the burden of proving that an injunction is necessary, and the decision to grant or deny the preliminary injunction is within the broad discretion of the district court. Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006); Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987). A. THREAT OF IRREPARABLE HARM Having carefully considered the parties’ arguments and supportive case law, the Court concludes that the United States’ motion for preliminary injunctive relief turns on the second Dataphase factor, the threat of irreparable harm in the absence of a preliminary injunction. “Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not g ranted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. . . .” 11A C HARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1, at 139 (2d ed. 1995). “There must be a likelihood that irreparable harm will occur. .. . [A] preliminary injunction will not be issued simply
5

to prevent the possibility of some remote future injury.” Id. § 2948.1, at 153-55; see also Kaplan v. Bd. of Educ. of City Sch.Dist. of City of New York, 759 F.2d 256, 259 (2d Cir. 1985) (predictions of havoc and unrest were too speculative to constitute clear showing of immediate irreparable harm).
The United States has delayed moving for injunctive relief for a significant period of time after it knew of the conditions at the CHDC of which it now complains. “A long delay by plaintiff after learning of the threatened harm may be taken as an indication that the harm would not be serious enough to justify a preliminary injunction.” 11A C HARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1, at 156 and n.12 (2d ed. 1995); see also Klauber Bros., Inc. v. Lady Marlene Brassiere Corp., 285 F. Supp. 806, 808 (D.C.N.Y. 1968) (where plaintiff was aware of defendant’s a ctivities for about one year prior to filing the lawsuit, plaintiff’s inaction disentitled it from receiving a preliminary injunction); Poe v. Michael Todd Co., 151 F. Supp. 801, 803 (D.C.N.Y. 1957) (that the plaintiff waited three months after filing suit to move for injunctive relief was a factor militating against granting preliminary injunction). As the Second Circuit has stated:
Though . . . delay may not warrant the deni al of ultimate relief, it may , standing alone, preclude the granting of preliminary injunctive relief because the failure to act sooner undercuts the sense of urg ency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury. Although delay may not negate the presumption of irreparable harm if the delay was caused by the plaintiff’s ignorance of the defendant’s [conduct], if it isnot so explainable, delay alone may justify denial of a preliminary injunction. Tough Traveler, Ltd. v. Outbound Products, 60 F .3d 964, 968 (2d Cir. 1995) (internal quotes, citations, ellipses omitted); see also Hubbard Feeds, Inc. v.Animal Feed Supplement, Inc., 182 F.3d 598 (8th Cir. 1999) (affirmingthe district court’s determination that the plaintiff’s delay in objecting
6

to the defendant’s use of its pr oduct “belies any claim of irreparable injury pending trial”) (citing Tough Traveler, 60 F.3d at 968).
The Court does not take lightly the seriousness of t he accusations in the United States’ complaint and motion for preliminary injunction. The second Dataphase factor is not, however, a matter solely of the seriousness of the allegations; the issue is whether harm will be irreparable but for immediate Court intervention. The United States has moved for a preliminary injunction more than seven years after it started investigations; almost six years after issuing its findings on the investigations; almost fourteen months after the complaint was initially filed; approximately six months after its experts completed weeks of onsiteinvestigations at the CHDC; and onlysix months in advance of a potentially month-long trial on t he merits.3 B y its own de lay in r equesting a preliminary injunction, the United States has tacitly shown that it does not believe the threat of irreparable harm is so great as to warrant preliminary injunctive relief. Based on the record, the United States cannot saythat itsdelay was caused byits ignorance of the defendants’conduct, Tough Traveler, 60 F.3d at 968, so its delay suggests that there is, in fact, no danger of irreparable harm absent Court intervention. Moreover, the fact that trial on the merits is near minimizes the danger that irreparable harm will occur before a decision is reached on the merits.
The Court has carefully reviewed the allegations contained in the United States’ 50-page findings letter, the complaint, and the motion for preliminary injunction. The allegations in the motion for preliminary injunction are in substance the same as the allegations in the 2004 findings letter. The Court has also carefully reviewed the declarations and reports of the six experts engaged by the United States. Each expert conducted an onsite investigation over a period of days between
3 The trial is scheduled to begin on September 8, 2010. 7

July and September of 2009. Each epxert severely criticizes the CHDC. None, however,opined that the deficiencies at the CHDC created an emergency situation that needed to berectified immediately. Had any of the experts observed an emergency situation that needed to be corrected immediately, one would have expected a motion for preliminary injunction accompanied by an affidavit shortly after conclusion of the onsite investigations in September. Instead, each expert issued a report in mid to late December of 2009—more than three monhts after conclusionof the onsite investigations. The United States then waited another three months to file its motion for a preliminary injunction. Having waited eight years from the beginning of itsinvestigation, six years since issuingthe findings letter, fourteen months since commencing this action, six months since completion of the experts’ onsite investigation, and t hree months since receiving its expert reports, the United States now argues that the status quo cannot continue another six months until the trial on the merits—which is not credible.
The United States has the burden of sh owing that an emergency preliminary injunction is now necessary to prevent irreparable harm that otherwise was not a danger back when the complaint was filed or when it wa s conducting investigations. The United States has failed to carry that burden.
Nor has the United States shown that a preliminary injunction is necessary to maintain the status quo. Thepurpose of a preliminaryinjunction is to preserve the status quo so that the court can render a meaningful decision on the merits after a trial. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975) (“The object of thepreliminary injunction is to preserve the status quo pending the litigation of the merits.”); Missouri-Kansas-Texas R. Co. v. Randolph, 182 F.2d 996, 999 (8th Cir. 1950) (“A temporary injunction is usually issued to preserve the status quo until a
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hearing on the merits may be had.”); United States v. Adler’s Creamery, 107 F.2d 987, 990 (2d Cir. 1939) (stating that a preliminary injunction’s “ordinary function is to preserve the status quo and it is to be issued onlyupon a showingthat there would otherwise be danger of irreparable injury”); 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2947 (2d ed. 1995). “Ordinarily, the court in its discretion may grant a preliminary injunction where it appears that there is a substantial controversy between the parties and that one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversybefore a full hearing can be had on the merits of the case,and generally such an injunction will be granted whenever necessary to the orderly administration of justice.” Missouri-Kansas-Texas R. Co., 182 F.2d at 999 (quoting Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir. 1948)).
Here, the relief requ ested by the United Stat es would, in fact, chang e the status quo. According to the United States’ own investigations and expert reports, there has been no significant change in the kinds of treatment and pr ocedures used at the CHDC si nce 2002, when the United States began investigating. The Uni ted States seeks changes in the admissions, treatment, and evaluation procedures at the CHDC and seeks those changes only six months before a trial on the merits is to begin. The United States’ motion makes clear that it, in fact, does not want the status quo to remain the same, as the status quo i s what the United States alleges is harmful to CHDC residents. B. REMAINING FACTORS
The remaining factors that the Court must consider are the probability of success on the merits, the balance of harms, and the public interest. As for the probability that the United States
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will succeed on the merits at trial, it is clear from the parties’ briefs that the opinionsof each party’s respective expert witnesses will play a significant role in the Court’s determination on the merits. In moving for a preli minary injunction, the United States relies heavily on its e xpert witnesses’ reports. Determining the likelihood of success requires full consideration of the expert reports from both sides, but pursuant to theschedule to which the parties agreed and which the Court, in reliance on the agreement of the parties, adopted, the time for the defense experts to submit their reports has not yet arrived. The parties agreed to a schedule whereby the expert reports for the United States would be disclosed by December 23, 2009; the defense experts’ onsite investigations would conclude by March 25, 2010; and the ex pert report for the defense would be disclosed by April 27, 2010. Document #24-2. The Court adopted th at agreed schedule. Document #25. The Court cannot determine the likelihood of success without considering the defendants’ expert reports, which are, by agreement and by court order, not yet due.
The other two factors—the public interest and the state of balance between the threat of harm and the injury that granting the injunction will inflict on other parties—are closely tied. Neither of them points more strongly toward granting an injunction than not, in part because of the nature of the injunction requested. The United States re quests that the Court issue an order providin g immediate relief to:
a. Cease all admissions of school-age children to the CHDC; b. Prohibit the treatment of childre n at t he CHDC with psy chotropic
medications prescribed by a psy chiatrist not accredited in child and adolescent psychiatry and appoint an independent psychiatric consultant to perform a medication side effect assessment of each CHDC resident who is receiving or has received psychotropic medications; and
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c. Prohibit the use at the CHDC of the most severe, outdated forms of mechanical restraints.
The United States also requests that within ninety days of the Court’s or der, all other forms of restraint should be reviewed and revised as appropriate by an independent team of doctoral level behavioral clinicians with actual training and experience in contemporary, evidence-based behavioral management programs; within thirty days of the Court’s order the parties should jointly choose an individual to act as Community Placement Evaluator; within ninety days the Community Placement Evaluator should access all of the children at theCHDC for communityplacement; and within thirty days of the assessment transition plans should be developed for all of the children.
As to the first aspect of the preliminary injunction requested by the United States, in the absence of specific information about the specific circumstances of a specific child who might be admitted to the CHDC, the Court has nomeans by which to balance the harm and assess the public interest associated with granting a preliminary injunction. Without specific information involving a particular child, the Court cannot say whether admitting that child to the CHDC or prohibitingthe admission of that child to the CHDC would be in the best interest of the child or in the public interest.
In the second aspect of the preliminaryinjunction requested by the United States, the United States requests that the Court prohibit treatme nt of children with psy chotropic medications prescribed by the CHDC psychiatrist. Without knowing the specific facts of a particular case, the Court cannot say whether the potential harm fro m psychotropic medications would outweigh the benefit of those psychotropic medications. With respect to the request that the Court appoint an independent psychiatric consultant to perform a medic ation side effect assessment, obviously it
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would take a span of t ime to find a child psychiatrist capable of performing the assessment and available to perform the assessment; and then actually performing the assessment would require another span of time. The Court cannot saythat the benefit of commencingthat process five months before trial would outweigh the harm that could be caused by waiting until the trial on the merits to determine whether such a process is really necessary.
In the third aspect of the request for injunction, the United States requests that the Court prohibit the use of “the most se vere, outdated forms of mechanical restraints.” Elsewhere in its request for a preliminary injunction, the United States refers to papoose bo ards, restraint chairs, straightjackets, “and similar outdated, extreme forms of behavioral restraints on children,” as the restraints that should be prohibited. The declaration of the expert retained by the United States on this issue, however, does not say that such restraints are never appropriate. The expert declaration says:
Mechanical restraints may be used i n certain, carefully limited circumstances consistent with clinical standards. These standards require a careful evaluation of the benefits and risks of using restraints by qualified staff. To accurately evaluate these benefits and risks, clinic ians must have an understanding of basic psychological principles and evidence-based treatment approaches. With appropriate review and oversight, mechanical restraints may then be used in a manner consistent with those principles. CHDC’s mechanical restraint practices substantially depart from these generally accepted standards and principals [sic]. Assuming that the Court were to accept this statement by the United States’ expert, the remedy would not be to eliminate completely the use of mechanical restraints but to require the CHDC to adopt appropriate clinicalstandards for usingthem. If the use ofmechanical restraints is appropriate in some circumstances, as apparently everyone agrees, there is insufficient information before the Court by which the Court can assess the balance of harms and the public interest associated with
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completely prohibiting the use of straightjackets, restraint chairs, and papoose boardsbetween now and a decision on the merits.
All of the other aspects of the request for a preliminary injunction involve requests that the Court order the commencement of processes that will take some months to complete. These may be valid requests, and the Court may order such processes to begin after a trial on the merits; but there is no information from which the Court can conclude that the potential harm in waiting the brief period of time between now and trial outweighs the potential harm associated with ordering the commencement of these processes before a trial on the merits.
The United States has failed to meet its burden of showing that the public interest and the balance of harms favor granting the injunction.
CONCLUSION Nothing in this Opinion and Order should beconstrued as discounting the seriousness of the issues. The decisions to be made are important—important enough to wait a few more months so that they can be based on all of the evidence. For the foregoing reasons, the United States’ motion for a preliminary injunction is DENIED. Document #42. The defendants’ motion to strike is DENIED as moot. Document #49. IT IS SO ORDERED this 7th day of April, 2010.
J. LEON HOLMES UNITED STATES DISTRICT JUDGE
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 Case 4:09-cv-00033-JLH Document 218 Filed 02/10/11 Page 1 of 318

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

)

v.

)

)

STATE OF ARKANSAS et al.;

)

)

Defendants.

)

)

)

_________________________________________ )

CIVIL ACTION NO: 4:09-CV-33-JLH

UNITED STATES’ POST-TRIAL BRIEF

Case 4:09-cv-00033-JLH Document 218 Filed 02/10/11 Page 2 of 318
TABLE OF CONTENTS
I. INTRODUCTORY FINDINGS OF FACT .................................................................... 8
II. FINDINGS OF FACT – AMERICANS WITH DISABILITIES ACT ...................... 10
A. CHDC Is a Segregated, Institutional Setting That Deprives Its Residents of the Opportunity To Fully and Independently Participate in Life...................................... 12
B. The Arkansas System for Serving Individuals With Developmental Disabilities Promotes Institutionalization. ..................................................................................... 14
C. ADA Expert Toni Richardson Provided Credible Expert Testimony. ....................... 19 D. CHDC Treating Professionals Are Responsible for Assessing Whether CHDC
Is the Most Integrated Setting Appropriate for a Residents’ Needs. .......................... 22 E. Defendants Discriminate Against Individuals at CHDC by Depriving Them of
Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. ..................................................................................... 25 F. Defendants’ Failure To Provide Objective, Reasonable Assessments Deprives Individuals and Guardians of Information Sufficient To Make Informed Choices About Community Placement. ...................................................................... 77
III. CONCLUSIONS OF LAW– VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT ...................................................................................................... 83
A. The ADA Requires Defendants to Provide CHDC Residents with Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. ....................................................................................................... 83
B. Defendants Discriminate Against Individuals at CHDC By Depriving Them Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. ..................................................................................... 87
C. Defendants’ Failure To Provide Objective, Reasonable Assessments Deprives Individuals and Guardians of Information Sufficient To Make Informed Choices About Community Placement. ...................................................................... 93
IV. FINDINGS OF FACT – PROTECTION FROM HARM........................................... 97
A. Expert Carla Jo Osgood Provided Credible Expert Testimony That CHDC’s Substantial Departure from Generally Accepted Minimum Professional Standards of Protection from Harm Results in Harm to CHDC Residents. ............... 97
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Incident and Quality Management Causes Repeated Harm and Risk of Harm to Residents. ............................................ 98
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm Regarding Abuse and Neglect by Staff Results in Injury and Risk of Injury to CHDC’s Residents. ..................................... 106
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Restraint Use Results in the Excessive and Inappropriate Use of Restraints and Violates the Rights of Residents. ...................................................... 111
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E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Staffing and Supervision Results in Harm to CHDC Residents................................................................................................... 114
F. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Staff Training Results in Harm to CHDC Residents. .................................................................................................................. 115
G. CHDC Fails To Protect Resident Rights Adequately. .............................................. 118
V. CONCLUSIONS OF LAW – PROTECTION FROM HARM ................................ 119
VI. FINDINGS OF FACT – PSYCHOLOGY AND BEHAVIORAL SERVICES..................................................................................................................... 125
A. Experts Dr. Johnny Matson and Dr. Ramasamy Manikam Credibly Testified That CHDC’s Psychological and Behavioral Services Substantially Depart from Generally Accepted Professional Standards, Causing Harm, and Risk of Harm, to CHDC Residents................................................................................................... 126
B. Instead of Providing Appropriate Psychological Care, CHDC Staff Restrain Residents with Excessively Harsh Methods, at Astronomical Rates, in Substantial Departure from Professional Standards. ................................................ 128
C. CHDC Subjects Its Residents to Harmfully Inadequate Psychological Treatment. ................................................................................................................. 135
D. CHDC’s Psychological Assessment and Diagnosis Procedures Substantially Depart from Generally Accepted Professional Standards. ....................................... 142
E. CHDC’s Substandard Data Collection Is Unreliable................................................ 150 F. CHDC’s Psychology Services Substantially Depart from Generally Accepted
Professional Standards Because CHDC Lacks Sufficient Psychology Staff with the Education, Training, and Experience Required for the Treatment of Individuals with Developmental Disabilities............................................................ 151 G. CHDC Does Not Provide Psychology Staff with Adequate Clinical Supervision. .............................................................................................................. 156
VII. CONCLUSIONS OF LAW – PSYCHOLOGY AND BEHAVIORAL SERVICES..................................................................................................................... 159
A. CHDC’s Psychological and Behavioral Services Violate Residents’ Constitutional Right to Habilitation and Treatment.................................................. 159
B. CHDC Harms Residents with Unlawful Restraints That Violate the Fourteenth Amendment............................................................................................................... 163
VIII. FINDINGS OF FACT – PSYCHIATRY .................................................................... 168
A. Drs. Holloway and Mikkelsen Provided Credible Expert Testimony Detailing CHDC’s Substandard Psychiatry Services. .............................................................. 168
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Needless Exposure to Harmful Side Effects of Psychotropic Medications.............. 173
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from
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Clinically Deficient Diagnoses That Are Used To Justify the Administration of Psychotropic Medications......................................................................................... 182 D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Harmful Medication Practices. ................................................................................. 189 E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Clinically Deficient Assessments of Medication Efficacy. ...................................... 198 F. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Delayed Psychiatric Assessments. ............................................................................ 200 G. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from CHDC’s Failure To Provide Its Consulting Psychiatrist with Sufficient Training and Oversight. ........................................................................................................... 207 H. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Lack of Coordination and Communication Regarding Psychiatric Care........................... 211
IX. CONCLUSIONS OF LAW – PSYCHIATRY............................................................ 215
X. FINDINGS OF FACT – MEDICAL CARE ............................................................... 217
A. CHDC Inappropriately Relies on Untrained Direct Care Staff To Identify Changes in Health Status. ......................................................................................... 217
B. CHDC Exercises Insufficient Clinical Oversight. .................................................... 218 C. CHDC’s Bad Clinical Outcomes Confirm Its Deficiencies in Medical Care. .......... 220
XI. CONCLUSIONS OF LAW – MEDICAL CARE ...................................................... 221
XII. FINDINGS OF FACT – PHYSICAL AND NUTRITIONAL MANAGEMENT.......................................................................................................... 224
A. Expert Carly Crawford Provided Credible Expert Testimony of CHDC’s Deficiencies in Physical and Nutritional Management............................................. 224
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Choking. .......................................................................................... 226
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Aspiration Pneumonia. .................................................................... 232
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Fractures. ......................................................................................... 239
E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Pressure Ulcers. ............................................................................... 242
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XIII. CONCLUSIONS OF LAW – PHYSICAL AND NUTRITIONAL MANAGEMENT.......................................................................................................... 244
XIV. FINDINGS OF FACT – SPECIAL EDUCATION.................................................... 248 A. Expert Susan Thibadeau Provided Credible Expert Testimony That CHDC’s Education Program Violates Numerous IDEA Requirements.................................. 249 B. Arkansas’s State Educational Agency Issued Numerous Findings of IDEA NonCompliance at CHDC for This Monitoring Period................................................... 251 C. CHDC IEP Teams Do Not Include All Members Required by the IDEA................ 253 D. CHDC’s Special Education Instructional Time Is Inadequate. ................................ 255 E. CHDC IEP Goals and Objectives Fail To Meet IDEA Requirements...................... 260 F. CHDC Fails To Administer IDEA-Required Statewide and Districtwide Assessments. ............................................................................................................. 262 G. CHDC Fails To Consider IDEA-Required Factors in Developing Students’ IEPs..... ...................................................................................................................... 264 H. CHDC Fails To Provide Related Services to All Students Who Require Them To Benefit from Special Education Services. ........................................................... 265 I. CHDC’s Transition Planning and Transition Services Do Not Satisfy IDEA Requirements. ........................................................................................................... 272 J. CHDC Fails To Educate Students in the Least Restrictive Environment, as Required by the IDEA. ............................................................................................. 276 K. CHDC Does Not Provide Adequate Teacher Training and Supervision.................. 282
XV. CONCLUSIONS OF LAW - SPECIAL EDUCATION ............................................ 284 A. CHDC’s Procedural IDEA Violations Deprive Students of Educational Opportunities............................................................................................................. 284 B. CHDC Students’ IEPs and Services Provided Therein Are Not Reasonably Calculated To Enable CHDC Students To Receive Educational Benefits. .............. 297 C. CHDC’s Failure To Meet the Standards of the State Educational Agency Establishes an Independent Basis for Findings of IDEA Violations. ....................... 308
XVI. CONCLUSION ............................................................................................................. 310
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The Conway Human Development Center (“CHDC”) is an institution geared toward the life-long institutionalization of people with intellectual and developmental disabilities. Defendants segregate people in CHDC and restrict their ability to fully and independently participate in life in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. Moreover, Defendants expose people confined in CHDC to harmful, dangerous conditions, including preventable injuries and death, unnecessary and prolonged bodily restraint, and substandard care and treatment in violation of the Fourteenth Amendment. Additionally, Defendants deny children in CHDC adequate special education services in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482. As a result, people in CHDC suffer serious harm and death; children are deprived of the education services to which they are entitled; and individuals are denied any real opportunity to ever leave CHDC.
Defendants Deny People Confined to CHDC a Meaningful Opportunity To Live in the Community in Violation of the ADA
The ADA mandates that Defendants offer services to people with disabilities in the most integrated setting appropriate to their needs. See generally Olmstead v. L.C., 527 U.S. 581 (1999). It is impossible to determine what type of setting is appropriate without conducting an objective, reasonable assessment. CHDC fails to even attempt to assess people confined there and identify the specific services necessary to meet their needs unless a guardian affirmatively requests or expresses interest in community placement. Even when CHDC conducts an assessment, staff members are too ill-informed about what community services are available in Arkansas, and what skills an individual needs to be eligible for a community program, to provide an independent, reasonable determination about the most integrated setting appropriate for an
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individual. CHDC treatment plans demonstrate staff members’ lack of knowledge about community programs and reveal CHDC’s discriminatory bias in favor of continued institutionalization.
Both people in the facility and their guardians are ill-served by CHDC’s failure to provide objective, reasonable assessments. Guardians, deprived of the knowledge that a placement tailored to the individual needs and strengths of their loved ones may exist, naturally are inclined to maintain the status quo of continued institutionalization. Defendants’ failure to provide objective, reasonable assessments perpetuates this discriminatory system and dooms people to lifelong confinement at CHDC.
Defendants Expose People Confined to CHDC to Serious and Preventable Harm in Violation of the Fourteenth Amendment
Defendants also routinely expose people confined to CHDC to serious, preventable harms in violation of the Fourteenth Amendment’s Due Process Clause. See generally Youngberg v. Romeo, 457 U.S. 307 (1982). At CHDC, there are disturbing patterns of staff abuse/neglect, preventable self-injurious behaviors, inappropriate and excessive use of restraints, and serious injuries such as fractures and lacerations from falls and other preventable incidents. Many of the harmful conditions are the by-products of institutionalization and could be prevented with adequate information and planning. Aspiration pneumonias, choking, bone fractures, and skin pressure ulcers from inadequate physical and nutritional supports, and injuries from unaddressed challenging behaviors, are all highly preventable with timely assessments of individuals that drive appropriate interventions and ongoing monitoring. CHDC’s failure to engage in meaningful, individualized assessments and monitor their implementation results in serious injuries and other harm.
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CHDC also excessively relies on physical restraints, and uses archaic forms of restraint, as the first response to behavior rather than as a last resort, in violation of the Constitution. Little is done to determine the cause of the behaviors that purportedly justify the restraint, nor is an effort made to determine what behavioral interventions might be appropriate, whether staff are implementing behavioral interventions correctly, or whether a change in behavioral interventions would render restraint unnecessary. Once again, Defendants’ failure to properly assess the psychological needs of individuals with challenging behaviors, and provide treatment accordingly, exposes people to ineffective behavioral interventions and prolonged, harmful, and unnecessary bodily restraint in violation of the Fourteenth Amendment.
Likewise, CHDC’s failure to properly prescribe and monitor the side effects of psychotropic medications causes significant, even fatal, harm. Although CHDC administers powerful psychotropic medications to hundreds of people confined to CHDC, the facility lacks a coherent system for identifying and assessing side effects.
CHDC’s assessments of psychiatric illnesses are glaringly deficient. Far too often, the prescription of powerful medications is based solely on the recommendation of unqualified staff without an appropriate psychiatric diagnosis. People in CHDC are often needlessly exposed to serious harm caused by unmonitored psychotropic medication side effects, deficient assessments of medication efficacy, untimely psychiatric assessments and follow up care, and inadequate oversight of CHDC’s untrained, over-stretched psychiatrist – who inappropriately delegates critical determinations to unqualified, nonmedical, staff. CHDC also exposes people to serious harm from inappropriate use of medication to suppress other medication’s side effects, to respond to non-psychiatric environmental behaviors, and to chemically restrain individuals.
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CHDC’s general medical services rely on untrained direct care staff to identify health problems. CHDC’s medical staff is unqualified and poorly supervised. This substandard medical care system explains why people confined to CHDC die an average of 25 years earlier than residents at comparable state facilities.
People in CHDC are also exposed to preventable harm and death from Defendants’ failure to adequately manage physical and nutritional needs in violation of the Fourteenth Amendment. Many people in CHDC die of preventable aspiration pneumonia or other respiratory-related causes. Staff implementing physical and nutritional management plans, necessary to prevent choking and aspiration, do not monitor or provide support consistent with the level of risk. Consequently, Defendants needlessly expose individuals who are at high risk of aspiration and choking to severe harm, including death. Similarly, CHDC fails to properly reassess risk and implement physical management positioning plans. Far too often, people in CHDC suffer from repeated bone fractures or skin pressure sores.
Defendants Deny CHDC Children Their Right to Education in Violation of the IDEA
Children confined to CHDC are entitled, under the IDEA, to an education in the least restrictive environment and to related services that enable them to benefit from that education. CHDC fails to meet this mandate. Defendants violate the IDEA’s requirement of a free and appropriate public education (“FAPE”) by failing to provide special education, related and transition services reasonably calculated to enable students to receive educational benefits. Specifically, Defendants fail to provide students an education in the least restrictive environment; fail to provide adequate instructional time, required related services (e.g., communication, audiology, and psychology services), and adequate transition planning; fail to
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target skill development to allow progress toward more integrated settings; and employ untrained and unsupervised education staff. Indeed, even Arkansas’s own Department of Education concluded that CHDC’s education services violate the IDEA.
Defendants also fail to comply with the IDEA’s procedural requirements. For example, Defendants fail to offer CHDC students a full continuum of educational placements in violation of the IDEA. Additionally, neither a Local Education Agency (“LEA”) representative nor a regular education teacher routinely attend individualized education plan (“IEP”) meetings; IEPs do not contain mandatory appropriate, measurable goals and objectives; IEP teams fail to consider IDEA-required factors for developing IEPs; CHDC students do not receive regular or alternate statewide or districtwide assessments; and CHDC routinely fails to invite agency representatives to assist students in transitioning to postsecondary services, all of which are required under the IDEA.
* * * The people confined to CHDC range in age from 7 to 70, and have diverse diagnoses, interests, capacities, and needs. Defendants cannot ensure their safety, nor adequately protect their rights, without meaningfully assessing how to do so. Defendants’ failure to conduct individualized, comprehensive, independent assessments, and provide care and services accordingly, subjects individuals to unnecessary and serious risk of harm, results in substandard medical care, denies children required education services, and preserves a discriminatory, institutionally-biased, and unlawful system in violation of the Constitution and federal law.
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TABLE OF CONTENTS – AMERICANS WITH DISABILITIES ACT
I. INTRODUCTORY FINDINGS OF FACT .................................................................... 8
II. FINDINGS OF FACT – AMERICANS WITH DISABILITIES ACT ...................... 10
A. CHDC Is a Segregated, Institutional Setting That Deprives Its Residents of the Opportunity To Fully and Independently Participate in Life...................................... 12
B. The Arkansas System for Serving Individuals With Developmental Disabilities Promotes Institutionalization. ..................................................................................... 14 1) CHDC Residents Tend To Enter CHDC As a Child and Stay for a Lifetime........................................................................................................... 14 2) The Arkansas System for Serving Individuals with Developmental Disabilities Relies Disproportionally on Institutionalization.......................... 17
C. ADA Expert Toni Richardson Provided Credible Expert Testimony. ....................... 19 1) Expert Richardson Is Well-Qualified To Review the Process Used by CHDC Interdisciplinary Teams. ..................................................................... 19 2) Expert Richardson’s Review of Community Integration Practices at CHDC Was Thorough and Considered Information Typically Used by Treating Professionals..................................................................................... 21
D. CHDC Treating Professionals Are Responsible for Assessing Whether CHDC Is the Most Integrated Setting Appropriate for a Residents’ Needs. .......................... 22
E. Defendants Discriminate Against Individuals at CHDC by Depriving Them of Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. ..................................................................................... 25 1) In Determining the Most Integrated Setting Appropriate, Interdisciplinary Teams Must Conduct an Independent, Objective Assessment of Individuals’ Needs and the Supports Necessary To Meet Those Needs.................................................................................................... 25 2) CHDC Teams Fail To Find That Any Residents Can Be Served in More Integrated Settings Unless a Guardian Affirmatively Requests or Expresses Interest in Community Placement.................................................. 29 3) Local Providers of Community Services Are Currently Serving Individuals Who Need the Same Supports and Services as Residents of CHDC. ............................................................................................................ 34 4) CHDC Staff Conceded That Many Individuals at CHDC Can Be Served in More Integrated Settings............................................................................. 44 5) CHDC Treatment Teams Lack Sufficient Information or Knowledge Necessary To Make Objective, Reasonable Assessments Regarding the Most Integrated Setting Appropriate for Individuals at CHDC...................... 45 6) Individual Program Plans Demonstrate CHDC’s Failure To Conduct Objective, Reasonable Assessments of Whether Individuals are Appropriate for a More Integrated Setting...................................................... 51
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F. Defendants’ Failure To Provide Objective, Reasonable Assessments Deprives Individuals and Guardians of Information Sufficient To Make Informed Choices About Community Placement. ...................................................................... 77
III. CONCLUSIONS OF LAW– VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT ...................................................................................................... 83 A. The ADA Requires Defendants to Provide CHDC Residents with Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. ....................................................................................................... 83 B. Defendants Discriminate Against Individuals at CHDC By Depriving Them Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. ..................................................................................... 87 1) CHDC Teams Fail To Find That Any Residents Can Be Served in More Integrated Settings Unless a Guardian Affirmatively Requests Or Expresses Interest in Community Placement.................................................. 88 2) Treatment Teams at CHDC Do Not Have Sufficient Knowledge or Training About Community Integration to Make Reasonable Recommendations Regarding the Most Integrated Setting Appropriate for Individuals at CHDC................................................................................. 89 3) Individual Program Plans Demonstrate CHDC’s Failure to Conduct Objective, Reasonable Assessments of Whether Individuals Are Appropriate For A More Integrated Setting.................................................... 90 C. Defendants’ Failure To Provide Objective, Reasonable Assessments Deprives Individuals and Guardians of Information Sufficient To Make Informed Choices About Community Placement. ...................................................................... 93
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I. INTRODUCTORY FINDINGS OF FACT 1. The Conway Human Development Center (“CHDC”) serves more than 500 residents with intellectual and developmental disabilities who range in age from 7 to 70. Richardson Tr. 533:3-15; US Ex. 229 (CHDC Statistical Summary). The population of the CHDC facility has remained static during the last few years. J.C. Green Tr. 763:21-764:2. CHDC is licensed to serve 539 individuals. US Ex. 229. 2. CHDC is an institution within the meaning of 42 U.S.C. § 1997. Answer and Affirmative Defenses # 14 [Dkt. 4]. 3. CHDC is the oldest and largest of Arkansas’s six human development centers (“HDCs”). J.C. Green Tr. 764:3-9. It is located on 409 acres of land bordering Interstate 40 in Conway, Arkansas. Defendants’ Response to Plaintiff’s Statement of Undisputed Facts at 2 [Dkt. 104]. CHDC was originally called the Arkansas Children’s Colony, and is the only Arkansas HDC housing children. J.C. Green Tr. 764:7-765:1. 4. The State, through the Division of Developmental Disabilities (“DDS”) of the Arkansas Department of Human Services (“DHS”), coordinates services for individuals with intellectual and developmental disabilities and provides congregate services for individuals at the HDCs, including CHDC. J.C. Green Tr. 748:23-749:2; Defendants’ Response to Plaintiff’s Statement of Undisputed Facts at 2 [Dkt. 104]. The Director of DHS reports to the Governor of Arkansas. J.C. Green Tr. 749:17:750:1. 5. Dr. James C. Green, as the DDS Commissioner, is responsible for overseeing the operations of the HDCs, including CHDC. J.C. Green Tr. 749:17-750:9. He also oversees the
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administration of Arkansas’s Alternative Community Services (“ACS”) waiver program. J.C. Green Tr. 749:3-16; Cromer Tr. 1411:22-1412:5. 6. Calvin Price is the superintendent of CHDC. He oversees all administrative operations at CHDC, including – but not limited to – staffing decisions, budgetary matters, performance reviews, and supervision of team leaders, department heads, and some support staff. Price Tr. 1656:3-12, 6864:14-25. He makes the final decision on all admissions to and discharges from CHDC, defines how CHDC reviews clients’ restraint use and incident investigations, serves as CHDC’s official representative to state agencies and the community, and administratively reviews all safety plans, positive behavior support plans, and incident investigations. Price Tr. 1690:14-19, 1669:16-1670:12, 6867:22-6868:17, 1656:6-12, 6872:25-6874:21, 6877:12-14. As superintendent, he describes himself as having “administrative oversight of the human development center 24 hours a day, seven days a week.” Price Tr. 6863:21-22. 7. The State officials who operate or control CHDC have responsibility for the operation of CHDC and for the health and safety of the persons residing at CHDC. Answer and Affirmative Defenses # 13 [Dkt. 4]. 8. The State officials who operate or control CHDC have obligations under the ADA and the IDEA regarding CHDC residents. Answer and Affirmative Defenses ## 16-17 [Dkt. 4]. 9. The State officials who operate or control CHDC act under color of state law in providing care and services to individuals who reside at CHDC. Answer and Affirmative Defenses # 18 [Dkt. 4]. 10. Individuals who receive services at CHDC have intellectual and developmental disabilities that require treatment, support, and services. Answer and Affirmative Defenses # 19 [Dkt. 4].
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II. FINDINGS OF FACT – AMERICANS WITH DISABILITIES ACT 11. The Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, requires Defendants to offer services to individuals with disabilities in the most integrated setting appropriate to their needs. See generally Olmstead v. L.C., 527 U.S. 581 (1999). Defendants are discriminating against individuals at CHDC by failing to ensure that they are served in the most integrated setting appropriate to their needs, in violation of the ADA. Id. at 602. 12. Specifically, CHDC treatment professionals fail to make objective, reasonable assessments based on the individuals’ needs and services necessary to meet those needs, of whether individuals at CHDC could be served in a more integrated setting. Instead, CHDC simply determines all CHDC residents are not appropriate for placement in a more integrated setting, unless and until the family seeks community placement. As a result, residents and their guardians are deprived of a treating professional’s independent, individualized recommendation about whether the individual could handle or benefit from community placement. Without the benefit of an independent, reasonable assessment based on the individual’s needs, including the opportunity to meaningfully discuss what services and supports the individual would receive in the community, guardians are inclined to maintain the status quo of continued institutionalization and segregation even when a more integrated setting may be available and appropriate for the individual. Moreover, without information about the specific needs of CHDC’s population, providers of community services are unable to develop capacity and tailor the services they provide to the needs of those currently institutionalized. In this way, CHDC’s failure to provide objective, reasonable assessments preserves CHDC’s archaic and discriminatory system for providing services to individuals with developmental disabilities, and deprives individuals of
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“equality of opportunity, full participation, independent living, and economic self-sufficiency,” in violation of the ADA. 42 U.S.C. § 12101(a)(2). 13. The evidence of CHDC’s failure to provide objective, reasonable assessments, and the resulting inability of guardians to meaningfully make placement decisions, is substantial. For example, CHDC treatment teams and guardians of residents testified that teams do not discuss or pursue specific placement options unless the family first requests such action. Tellingly, the only four individuals that CHDC treatment teams determined could be served in a more integrated setting were the very four individuals whose guardians had requested community placement. 14. Moreover, CHDC treating professionals do not have the information and knowledge necessary to make objective, reasonable assessments about whether individuals could be served in more integrated settings. CHDC staff members are so lacking in even the most basic understanding of the services available in the community that they are incapable of conducting reasonable assessments. Treatment team leaders admit they have very little, if any, knowledge about how individuals with developmental disabilities are served in the community or the benefits of community care, and several of the team leaders have never even visited a community placement. Their lack of knowledge is evidenced in CHDC transition plans that repeatedly list the same barriers to placement in a more integrated setting, such as skills acquisition, behavioral improvement, and medical needs, when, in fact, community programs that currently exist in Arkansas provide all of these services. CHDC treatment plans are generic, boilerplate, and reveal CHDC’s discriminatory bias toward continued institutionalization. Few residents are ever discharged from CHDC. In fact, more people die at CHDC than get discharged. 15. The evidence of the impact of CHDC treatment teams’ failure to make objective, reasonable assessments of the most integrated setting appropriate based on individuals’ needs is
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also significant. Guardians are not provided the information necessary to meaningfully consider a more integrated setting. Staff and guardians consistently describe the treatment team process as little more than inquiring whether guardians are “happy” with CHDC or whether they are “interested” in community placement. In fact, guardians are asked to choose between community placement and continued institutionalization before they even meet with their loved ones’ treatment team. CHDC treatment teams take no further steps if a guardian states they are happy in CHDC or not interested in community placement. Not only do CHDC treatment teams deprive families of information by not providing them with an independent recommendation, but they take no steps to ensure that families are informed about community options. Without specific, accurate information about what exists in the community and the options available to meet the needs of their loved ones, guardians cannot meaningfully make a decision about a more integrated placement, and Defendants preserve their discriminatory and unlawful system. 42 U.S.C. §§ 12101-12213.
A. CHDC Is a Segregated, Institutional Setting That Deprives Its Residents of the Opportunity To Fully and Independently Participate in Life.
16. CHDC is not an integrated setting but rather a self-contained facility. Richardson Tr. 541:10-14, 623:3-19; A. Green Tr. 830:10-831:21. 17. There are very few opportunities for CHDC residents to interact with non-disabled peers or develop friendships with non-disabled peers. Richardson Tr. 541:10-14; US Ex. 230 (Off Grounds Outing). CHDC residents receive most of their services on the facility grounds. Richardson Tr. 535:6-18; A. Green Tr. 831:1-6 (medical care and dental care is provided to residents at CHDC).
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18. The off-campus outings available at CHDC are mostly large group activities such as going to the movies, and are offered to only a very small percentage of CHDC residents. Richardson Tr. 535:19-537:6; US Ex. 230 (Off Grounds Outing for May 2009). Such activities do not provide CHDC residents with an opportunity to meaningfully interact with or get to know non-disabled peers on a more personal level. Richardson Tr. 535:19-537:6 19. Virtually no one spends their day outside of CHDC. Currently, no CHDC residents participate in day programs outside of facility grounds. Richardson Tr. 537:9-16; US Ex. 229. Only 11 individual CHDC residents work off-campus – a mere two percent of the individuals at CHDC. Richardson Tr. 533:19-534:17; US Ex. 229. 20. The overwhelming majority of the CHDC residents sleep in dormitories that deprive individuals of the privacy, personal space, and security for belongings that adults typically enjoy. Richardson Tr. 537:17-540:14 (“[W]e don’t tend to share our sleeping spaces with multiple people. Even folks who go to a nursing home don’t want to sleep in a more than two-person room, and most don’t want to do that either. So it’s the norm for our society is to have your own sleeping space and your own place to have your belongings.”), 543:7-23; US Ex. 235. 21. In some CHDC residences, as many as ten individuals sleep in one room. Price Tr. 1679:23-1680:6. Other residences have four individuals or more to a room or segment. Richardson Tr. 537:17-538:14. 22. CHDC residents do not “have a daily opportunity to participate in what’s for most of us a fairly normal activity of preparing a meal, and being around a meal when a meal is being prepared.” Richardson Tr. 540:24-541:9. Instead, food for CHDC residents is “pre-prepared” in a central kitchen and then is transported out to the units for meals. Richardson Tr. 540:24-541:9; A. Green Tr. 830:10-19.
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B. The Arkansas System for Serving Individuals With Developmental Disabilities Promotes Institutionalization. 1) CHDC Residents Tend To Enter CHDC As a Child and Stay for a Lifetime.
23. Most current residents of CHDC entered the facility as children or youth. US Ex. 454. More than one-third of the current CHDC residents were admitted to the facility when they were younger than 10 years of age, and 82 percent of residents were admitted when they were under 18 years of age. US Ex. 454. 24. Of the 419 residents who entered CHDC under the age of 18, 62 percent (more than half of CHDC’s population) have been there for 30 years or more. US Ex. 454 at 2-3. 25. For example, ME was admitted to CHDC in 1968, when he was just 6 years old. US Ex. 160. He spent over 40 years at CHDC – the remainder of his life. ME died of aspiration pneumonia in 2009. Price Tr. 6883:21-6884:5; Weaver Tr. 378:25-379:3. 26. JR is now a 46-year-old man, but he was just 6 years old when he was admitted to CHDC over 40 years ago, in 1970. US Ex. 140-1 (Redacted Individual Program Plan (“IPP”)).1 Although JR is able to walk, talk, follow directions, dress and feed himself, and operate a shredding machine, every indication from his IPP is that JR, who has not seen his guardian in over 30 years, will remain at CHDC for the rest of his life. The long range goal in JR’s IPP states, “[b]y 2012 I will have self-care and daily living skills enabling me to function more independently in my present residence.” US Ex. 140-1 at CON-US-0322156. 27. ZS is still a child, just 12 years old. US Ex. 206. He, too, was 8 years old at the time of his admission to CHDC in 2007. ZS’s admission to CHDC was supposed to be a temporary

1

US Ex. 466 includes a spreadsheet of names for the redacted IPPs.

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placement while waiver services were set up for him. US Ex. AG-1; A. Green Tr. 6802:21-25. Yet, at the time of trial, ZS was still living at CHDC and his IPP reflects no expectation that ZS will ever leave CHDC. His long range goal states, “By 2012, I will learn appropriate behaviors in order to function more independently in his [sic] environment at CHDC and home visits.” US Ex. 206 at CON-US-0110256. 28. Indeed, few admitted individuals are ever discharged from CHDC, and even fewer individuals are discharged to more integrated settings. Richardson Tr. 541:24-542:16; US Ex. 271. Since July 2009, only 6 admitted individuals were discharged from CHDC. A. Green Tr. 6768:8-12. Only 18 individuals were discharged between June 2007 and July 2009. US Ex. 271; Richardson Tr. 541:15-542:16. Seven of those individuals were placed at other Arkansas human development centers. US Ex. 271. Only 11 people during that two year period – slightly more than 2 percent of the population – were discharged into more integrated settings, such as their family home or placements run by private community-based service providers. US Ex. 271. 29. In 2006 and 2007 an individual was more likely to die at CHDC than be discharged. US Ex. AG-2; A. Green Tr. 6794:4-6795:13. 30. In fiscal year 2008/2009, CHDC’s goal was to discharge 4 residents. US Ex. 235 (CHDC Belief-Based Performance Management and Strategic Plan: Outcome 1). CHDC’s original discharge goal had been eight, but was reduced to four because CHDC had been unsuccessful at reducing its population the previous year when admissions exceeded discharges. G. Miller Tr. 5041:13-5044:5; US Ex. GM-2. 31. In the last two years, CHDC has admitted more children than adults. A. Green Tr. 846:18-22; C. Price 1690:17-23.
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32. There are approximately 50 school-aged individuals (under 21 years of age) living at CHDC, making up approximately 10 percent of the population at CHDC. US Ex. 229; J.C. Green Tr. 764:20-765:1; A. Green Tr. 846:2-5. 33. CHDC has expanded its capacity for housing children since 2003. J.C. Green Tr. 768:36. Prior to the announced closing of Alexander HDC in Spring 2010, DDS had planned to expand CHDC’s capacity for school-aged children to approximately 75. J.C. Green Tr. 765:24768:6; Price Tr. 1690:24-1692:20; US Ex. 1105 at 10. 34. An institutional environment is not a normal environment for any child. Richardson Tr. 548:5-17. It denies the child opportunities to have contact with non-disabled peers and to have an ongoing parental relationship with an adult. Richardson Tr. 548:5-17. 35. Children who are institutionalized run the risk of remaining institutionalized for the rest of their lives. Richardson Tr. 548:18-549:3. Long term institutionalization makes it very difficult to separate children from that environment later in life. Richardson Tr. 548:18-549:3. As a result, children grow up without opportunities for more normal lives in which they could participate in the community or another less restrictive setting. Richardson Tr. 548:18-549:3. 36. In addition, institutionalization has long term consequences for children as they age, such as developing “institutional behaviors,” which result when the children observe and model the other maladaptive behaviors that occur around them. Matson Tr. 1179:4-15; see also Matson 1312:9-1313:4 (children’s development harmed by unsound medication practices). 37. Arkansas is exceptionally restrictive in its treatment of children with developmental disabilities. Matson Tr. 1098:1-7 (psychology expert Matson has never “seen any other residential facility with this many kids [living and] receiving all of their schooling on the campus”), Matson Tr. 1108:1-1109:16 (50 out of 50 students on shortened school day and lack
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of integrated behavioral services); US Ex. 1216 (ADE monitoring file citing CHDC for various deficiencies).
2) The Arkansas System for Serving Individuals with Developmental Disabilities Relies Disproportionally on Institutionalization.
38. Arkansas serves more individuals with intellectual and developmental disabilities in institutions than any other state but Mississippi. US Ex. 212 & 212-2; Richardson Tr. 593:21595:6. Per 100,000 people in the general state population, Arkansas serves 39 individuals in institutions. US Ex. 212-2; Richardson Tr. 593:21-595:6. The national average is 12.9. US Ex. 212-2. 39. Arkansas’s system for delivering services to individuals with developmental disabilities “makes it easier for a person to enter an institution than receive services in the community.” J.C. Green Tr. 792:22-793:8; US Ex. 232 at CON-US-0018017. 40. The State’s Governor’s Integrated Services Task Force Report admits that “[t]oo often, when a person experiences an acute illness, injury, or behavioral episode, entry into the institution is the initial solution. Once the person has made the necessary lifestyle changes to enter an institution, he or she may find it more difficult to return home than it would have been to remain in the community in the first place. Many supposed “short-term” stays in a nursing home or an Intermediary Care Facility for Mental Retardation (“ICF/MR”) become extended stays that last a lifetime.” US Ex. 232 at CON-US-0018017; J.C. Green Tr. 793:9-19. 41. According to data from 2007, many states do not use any large (defined as 16 or more beds) public facilities for individuals with developmental disabilities at all including West Virginia, New Mexico, Vermont, Rhode Island, New Hampshire, Alaska, Hawaii, Indiana, and Maine. Richardson Tr. 595:16-19; US Exs. 212, 212-2 & 214 at iii.
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42. In addition, as of June 30, 2007, at least 7 additional states served 100 or fewer individuals with intellectual and developmental disabilities in large state-operated institutions: Delaware, Idaho, Minnesota, Montana, Nevada, Oregon, and Wyoming. US Ex. 214 at 21-32. In 2006, 7 more states served 230 or fewer individuals with intellectual and developmental disabilities in state-operated institutions: Alabama, Arizona, Colorado, Michigan, North Dakota, South Dakota, and Utah. US Ex. 212-2. 43. From 1990 to 2006, the number of individuals with developmental disabilities residing in large institutions nationwide declined 55 percent, from 84,818 individuals to 38,299 individuals. US Exs. 212 & 212-2 at 49. Since 1980, the average state reduced its use of ICF/MR institutions by 71.7 percent, while in this timeframe Arkansas has reduced its use of ICF/MRs by 31.2 percent – less than half that amount. US Ex. 214 at 7; Richardson Tr. 596:11-596:17. 44. Other states, such as Pennsylvania, have acknowledged that all of the individuals in the state’s ICF/MRs can be served outside of institutions with appropriate supports. Richardson Tr. 597:20-25. New Hampshire provides services to individuals with developmental disabilities exclusively in community settings. US Ex. 212-2. 45. Arkansas ranks 44th for allocating resources to those individuals with developmental disabilities in the community, 49th for supporting individuals in community and homelike settings, 50th in keeping families together through family support, and 51st in supporting meaningful work. Kastner Tr. 4446:16-4449:19 (testimony of Defendants’ consultant Dr. Theodore Kastner, conceding Arkansas’s ranking in the United Cerebral Palsy, Inc.’s independent annual report “The Case for Inclusion,” a report Dr. Kastner had cited in his previous work in Connecticut) (report surveys all 50 states and the District of Columbia).
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46. The Arkansas ACS Waiver program is a part of the federal Home and Community-Based Services (“HCBS”) program funded by the Centers for Medicare and Medicaid Services (“CMS”). US Ex. 254 (Application for a § Arkansas 1915(c) Home and Community-Based Waiver Application); see Richardson Tr. 627:16-628:22. The ACS program provides community-based services for individuals with developmental disabilities as an alternative to and to prevent institutionalization. Cromer Tr. 1410:21-1413:5. 47. Individuals who are eligible for an institutional level of care, have a developmental disability, and meet the Medicaid income eligibility requirements are eligible for participation in the waiver program. Cromer Tr. 1414:15-20. 48. The State gives people an incentive to enter the HDC system because people can get waiver services faster by first entering the HDCs and then applying for waiver services as a priority HDC resident. J.C. Green Tr. 780:3-783:18; Black Tr. 6838:6-16 (“The other problem with the Medicaid waiver is, at the time when we were moving him from Easter Seals, they were working on number one, and we were number 2,200 something.”).
C. ADA Expert Toni Richardson Provided Credible Expert Testimony. 1) Expert Richardson Is Well-Qualified To Review the Process Used by CHDC Interdisciplinary Teams.
49. The U.S. Department of Justice asked Toni Richardson to review CHDC’s process for determining whether residents of CHDC can be served in a more integrated setting. Richardson Tr. 515:18-21, 734:22-735:5; US Ex. 210-1. 50. Expert Richardson has been working for more than 40 years on behalf of individuals with intellectual and developmental disabilities. Richardson Tr. 516:22-24; US Ex. 210-1 (Resume of Toni Richardson). For the last 15 years, she has been a consultant to states such as Pennsylvania,
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Tennessee, Louisiana, and New Jersey, regarding their services for individuals with developmental disabilities. Richardson Tr. 515:22-24; US Ex. 210-1. She assists states with developing their quality assurance plans, developing five-year plans, and improving their community services. Richardson Tr. 516:4-13. 51. In addition, expert Richardson’s recent work includes the review of interdisciplinary team decisions about placement of individuals institutionalized at the Clover Bottom and Greene Valley Development Centers in Tennessee into more integrated settings. Richardson Tr. 516:417. Ms. Richardson’s independent professional evaluation of the individual plans is then further reviewed by a district court’s quality review panel which is comprised of professionals in the field of developmental disabilities. Richardson Tr. 736:21-737:13. 52. Expert Richardson has extensive experience administering and managing state systems that serve individuals with developmental disabilities. She was the commissioner of the Connecticut Department of Mental Retardation for five years and prior to that was the regional director for the state-operated developmental centers in Connecticut. Richardson Tr. 518:17519:21. Richardson also worked for several years as the supervisor of the Connecticut state office that licenses and certifies public and private organizations that serve individuals with intellectual and developmental disabilities, including public and private ICF/MRs. Richardson Tr. 518:4-11. 53. Richardson has direct experience working in institutions. Richardson Tr. 516:25-517:21. She worked as a direct care staff person, a special education teacher and teacher’s supervisor at a large ICF/MR in Connecticut. Richardson Tr. 517:10-18. 54. Richardson has a master’s degree in special education and is currently certified, as well as a law degree. Richardson Tr. 517:22-518:3, 519:2-5.
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2) Expert Richardson’s Review of Community Integration Practices at CHDC Was Thorough and Considered Information Typically Used by Treating Professionals.
55. As part of her review of the community integration process at CHDC, expert Richardson toured the facility for approximately 2 weeks in July and September of 2009. Richardson Tr. 522:19-24. She visited approximately 20 residential units, as well as day programs and employment workshops on the CHDC grounds. Richardson Tr. 522:25-523:10. 56. Before and after these tours, expert Richardson reviewed a range of documentation, including both system-wide and facility policies and procedures, CHDC-related surveys and data, individual records and program plans, and sources of nationwide data regarding services for individuals with developmental disabilities. Richardson Tr. 526:6-18, 527:6-12. 57. Expert Richardson interviewed key individuals on the CHDC staff including the director of social services, the five team leaders, and a representative from the Division of Developmental Disabilities Services. Richardson Tr. 523:7-10, 525:20-526:2. 58. Expert Richardson visited several providers of community-based services for individuals with intellectual and developmental disabilities. Richardson Tr. 523:17-25. These included two providers in the Conway area and three providers in the Little Rock area. Richardson Tr. 524:19-525:2. These visits included opportunities to observe apartment settings as well as smaller ICF/MRs that must adhere to the same rules and regulations that apply to CHDC. Richardson Tr. 524:19-525:2, 574:22-576:14. She was able to speak to the directors and staff members of these programs. Richardson Tr. 589:17-590:4, 591:9-15. 59. Expert Richardson picked a sample of 40 CHDC residents, met or observed them, and examined their records, including their IPPs. Richardson Tr. 526:16-18, 528:1-10, 606:23-25. For these 40 individuals, Richardson examined the process through which CHDC determined
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whether they could be served in a more integrated setting, as required by the ADA and CHDC’s own policies. Richardson Tr. 526:6-25, 527:23-528:15, 530:16-531:19, 532:3-22. 60. As she looked at each individual’s records, expert Richardson read the summaries of their assessments, and looked for any interest in community placement as well as any descriptions of the individuals or program planning that was inconsistent with placement in a restrictive environment like CHDC, such as a need for quiet, private space, or one-on-one attention in order to learn well. Richardson Tr. 552:6-15, 557:24-558:6. 61. Expert Richardson also considered individuals’ medical and health conditions, stability, behavior, potential for progress, pattern of services, age, and the activities and programs that the individual enjoyed participating in, including whether or not there would be more opportunities for that activity in a more integrated setting. Richardson Tr. 564:7-565:10, 572:10-25. 62. These are the types of factors an interdisciplinary team considers in deciding whether an individual is in the most integrated setting appropriate to their needs. Richardson Tr. 572:22-25. These are also the types of factors expert Richardson uses when she reviews IPPs in her role as an evaluator for a district court’s quality review panel. Richardson Tr. 573:1-4.
D. CHDC Treating Professionals Are Responsible for Assessing Whether CHDC Is the Most Integrated Setting Appropriate for a Residents’ Needs.
Social work supervisor 63. Angela Green is a “licensed certified social worker” and “oversee[s] the Social Services department at CHDC.” A. Green Tr. 816:24-817:11. She has worked at CHDC since 2000. A. Green Tr. 816:22-23. As the head of the social services department, Angela Green’s duties include the “hiring, training, and supervising” of all twelve program specialists, or social services workers, at CHDC. A. Green Tr. 817:12-17.
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64. Green is considered the most knowledgeable person at CHDC about community placement. A. Green Tr. 819:7-12; Price Tr. 1695:11-16. 65. The social service workers that Green supervises are “responsible for providing information to residents and guardians for residents on their caseload about community placement options.” They are also responsible for helping residents and guardians transition into community placements. A. Green Tr. 819:23-820:10.
Team Leader 66. Each individual at CHDC is part of one of five residential “teams” which coordinate approximately with an individual resident’s level of skill, independence and/or disability. Richardson Tr. 554:3-14. Individuals in the Total Care Team (“TCT”) have the most significant disabilities at CHDC. Richardson Tr. 554:3-14. Individuals in the Habilitation and Training Team (“HTT”) are the most independent and high functioning individuals at the facility. Richardson Tr. 554:3-14; R. Brewer Tr. 1474:13-16. 67. Each of the five teams has a residential services manager, who is also known as the “team leader.” L. Brewer Tr. 1459:10-20; Richardson Tr. 525:9-19. Team leaders are responsible for supervising one of the five teams at CHDC. L. Brewer Tr. 1462:3-1463:18; US Ex. 279. Their duties include “reviewing, monitoring, and approving programs for developmentally disabled individuals.” L. Brewer Tr. 1462:18:22; R. Brewer Tr. 1474:20-23; US Ex. 279 (“Job Summary”). This specifically includes the duty to “approve or disapprove individual program plans.” L. Brewer Tr. 1462:23-1463:3; US Ex. 279 (“Job Duties and Responsibilities No. 3”). Team leaders review IPPs and attend annual reviews to ensure that residents’ plans meet their needs. L. Brewer Tr. 1463:12-18.
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68. Larry Brewer has been a CHDC staff member since 1973. L. Brewer Tr. 1459:7-9. He is the team leader of the Individual Assistance Team (“IAT”). L. Brewer Tr. 1459:10-12, 1460:10-15. 69. Rebecca Brewer has been a CHDC staff member since 1974 and is the current team leader of the HTT. R. Brewer Tr. 1472:25-1473:7, 1474:7-9. The majority of CHDC residents who transition to more integrated settings do so from the HTT. R. Brewer Tr. 1474:17-19. 70. Doug Hart has been a CHDC staff member since 2003 and is currently the team leader of the Sheltered Living Team (“SLT”). Hart Tr. 1925:7-9, 1926:9-14. Many of the older individuals at CHDC are part of the SLT. Hart Tr. 1926:22-1927:1.
Program coordinator 71. Program coordinators are responsible for coordinating services for a particular caseload of residents. Clendenin Tr. 1565:16-23; Murphy Tr. 435:8-436:1. They conduct annual reviews, hold special staffings, monitor the implementation of program plans, review program plans, and draft the interpretative summary on individuals’ IPPs. Clendenin Tr. 1565: 19-23; Murphy Tr. 436:14-19. 72. Program coordinators head the annual IPP meetings, compile the different disciplines’ reports for the development of IPPs, and monitor progress towards the IPP’s goals. Weaver Tr. 302:2-304:7; Hart Tr. 1927:14-16; Murphy Tr. 436:14-437:22. 73. Program coordinators should “know the most about a resident’s overall condition.” L. Brewer Tr. 1463:8-11; R. Brewer Tr. 1475:2-9. This includes the individuals’ IPPs, safety plans, strategies, and positive behavioral support plans. Clendenin Tr. 1567:15-1568:14.
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E. Defendants Discriminate Against Individuals at CHDC by Depriving Them of Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting.
74. CHDC interdisciplinary teams (“IDTs”) fail to conduct objective, reasonable assessments of whether CHDC residents can be served in a more integrated setting. See FOF ## 91-298. Instead, CHDC treatment teams routinely find that CHDC is the most integrated setting unless and until a resident’s guardian proactively requests community placement. See FOF ## 91-114.
1) In Determining the Most Integrated Setting Appropriate, Interdisciplinary Teams Must Conduct an Independent, Objective Assessment of Individuals’ Needs and the Supports Necessary To Meet Those Needs. i. HDC Residents Should Be in the Most Integrated Setting Appropriate to their Needs.
75. The policy statements of the American Association on Intellectual and Developmental Disabilities and the President’s Committee on Intellectual and Developmental Disabilities state that individuals with intellectual and developmental disabilities should be served in the most integrated setting appropriate to their needs. Richardson Tr. 736:5-20, 737:14-17. 76. Similarly, the DDS mission statement commits DDS to “statewide planning that ensures optimal innovative growth of the Arkansas services to meet the needs of people with developmental disabilities and to assist such persons to achieve independence and integration into the community.” Richardson Tr. 530:9-531:13; US Ex. 211. 77. The DDS mission also states its commitment to delivering services to individuals with developmental disabilities in the least restrictive environment appropriate for that individual person. Richardson Tr. 531:2-13; US Ex. 211.
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78. CHDC’s mission statement acknowledges that CHDC is “committed to utiliz[ing] the least restrictive alternatives to meet the developmental needs of individuals and foster a return to community living.” Richardson Tr. 532:3-25; US Ex. 238. 79. Each individual admitted to CHDC should have an IPP. US Ex. 278 (CHDC Individual Program Plan policy). CHDC’s Individual Program Plan policy states that the IPP is to be “goaldirected and must define the direction in which a person wants their life to go.” US Ex. 278 at 1; Richardson Tr. 584:5-12; L. Brewer Tr. 1464:1-5; R. Brewer Tr. 1475:10-13. In doing so the IPP should “specify long-range goals, behavioral objectives, and service objectives.” US Ex. 278 at 1; L. Brewer Tr. 1464:6-8. 80. CHDC interdisciplinary teams discuss the IPP annually at the annual review meeting. US Ex. 278 at 1. “The annual review is driven by the belief that throughout a lifetime, a person continues to develop increased competence/independence in successively less restrictive settings. It is the foundation for all decisions regarding services for any individual.” US Ex. 278 at 2; L. Brewer Tr. 1464:9-13. 81. According to DDS policy, one of the purposes of the annual review meeting is to determine that resident’s eligibility to remain at an HDC. Defs Ex. 912 at 107 (DDS Policy 1086: Human Development Center Admission and Discharge Rules) (emphasis added); see also Porter v. Knickrehm, 457 F.3d 794, 797 (8th Cir. 2005) (Court of Appeals affirmed the District Court’s approval of the new HDC admission/discharge rules). DDS policy regarding Human Developmental Center admission states in part that “in order to be eligible for admission the individual must be eligible for developmental disabilities services, be in need of and able to benefit from active treatment, and be unable to access appropriate adequate developmental disabilities services in a less restrictive alternative. Defs Ex. 912 at 106-07; see also Price Tr.
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1692:16-20 (admission process should determine if an individual is “unable to access services in a less restrictive environment”). 82. Consistent with this, CHDC policy states that the concluding step of the annual review meeting is “the review of all goals/objectives to determine the least restrictive alternatives available to enable the individual resident to achieve his/her personal goals.” US Ex. 278 at 3; see Clendenin Tr. 1583:20-1586:15 (the primary purpose of an individual’s annual review is to develop a plan for increasing a resident’s independence and transition into less restrictive environments).
ii. To Determine How the Individual Can Be Placed in the Most Integrated Setting Appropriate to Their Needs, Treating Professionals Must Independently Assess the Individual’s Desires, Needs, and Services Necessary To Meet Their Needs.
83. In determining the most integrated setting appropriate for an individual, the treatment team must examine the individuals’ needs, services necessary to meet those needs, and the individuals’ desires. See FOF ## 79, 80, 82 (Requirements of CHDC Individual Program Plan Policy). 84. The treatment team must provide an objective, clinically-based recommendation as to the appropriateness of community placement in order for residents and guardians to make an informed decision. Richardson Tr. 617:22-618:6. 85. Defendants’ consultant Kastner agrees that the interdisciplinary teams’ decision regarding the most integrated setting appropriate for any CHDC resident should be separate from the decision of the resident or guardian about placement outside of the facility. Kastner Tr. 4586:20-25.
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86. The availability of services should not be a bar to being recommended for community
placement. Richardson Tr. 629:16-19; Walsh Tr. 6143:8-16.
87. Interdisciplinary teams should be collecting information about the individual – their
abilities, interests, likes, dislikes, challenges – and crafting a program that allows that individual
to get what they want to out of life. Richardson Tr. 582:15-583:4, 605:19-606:10. Such an
assessment provides information that should be used to determine the most integrated setting
appropriate for that individual and what sort of specific, specialized services that individual
would require in a more integrated setting. Richardson Tr. 580:18-581:5, 585:4-11.
88. CHDC assessments should provide a description of what a resident actually needs to live
in an integrated setting beyond a generic list of services. Richardson Tr. 529:2-9, 550:5-551:11.
The plan should include specifics such as what type of specialized medical care or behavioral
health intervention the individual would need, what kind of specialist would be required, or what
type of transportation might be necessary (or how often). Richardson Tr. 550:5-551:11.
89. Community placement expert Richardson described what an individualized assessment
contains as follows:
[W]hat I was looking for was more of a description beyond the generic; What is it about medical care? Is there something about medical care that the person would need? Would he need to be close to a hospital, for example? Would he need to have a specialist, a neuro specialist? Would he need physical therapy? Would it need to be physical therapy in his residence or could he go to the physical therapist for service? If he were in the community, he’d need transportation, but what kind of transportation would he need? Would he need to be near a bus line? Would he need to have a car available at the house he was living? Would he need to have a special wheelchair van, or would he need an extra-special wheelchair van? Because some people go out and their wheelchairs are such that they don't fit in a regular wheelchair van. So would he need a special wheelchair van? Those are the kind of elements that I expected to see discussed in the plan so that you'd have a very clear picture of what kind of services this person could possibly get in a community setting, or would need to get in a community setting and very specific to him. Because what that does is allow you to really think about his services, but also to, when
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taken together with the plans of other people, to inform providers about the kind of services they might need to develop. Richardson Tr. 550:14-551:11. 90. The resulting program plans should apply the information gathered in the plan to assist the team in understanding how the resident can move to an appropriate more integrated setting. Richardson Tr. 580:18-581:5; see FOF # 87.
2) CHDC Teams Fail To Find That Any Residents Can Be Served in More Integrated Settings Unless a Guardian Affirmatively Requests or Expresses Interest in Community Placement.
91. CHDC’s own policies require that the treatment team annually determine an individual’s eligibility to remain at CHDC, including that the individual is unable to access appropriate services in a less restrictive alternative. See FOF # 81 (DDS policy 1086); see also Richardson Tr. 617:22-618:6, US Ex. 278. 92. However, in practice, unless a guardian requests placement in a more integrated setting, CHDC interdisciplinary teams overwhelmingly conclude that CHDC is the least restrictive setting appropriate for each individual. Richardson Tr. 529:10-22; see FOF ## 115-176 (CHDC erroneously finds that CHDC is the least restrictive setting appropriate); Kastner Tr. 4586:20-25. 93. At the time of trial, there were only four individuals at CHDC who were recommended by their interdisciplinary team for participation in the ACS waiver program. Richardson Tr. 546:19-547:3; US Ex. 284-1. According to CHDC, there were also only four CHDC residents seeking participation in the Arkansas ACS waiver program. Richardson Tr. 547:4-13; US Ex. 305-1. The four individuals recommended by their teams for the waiver program are the same four individuals seeking participation in the waiver program. Richardson Tr. 547:4-13; A. Green Tr. 836:16-837:9; US Exs. 284-1 & 305-1.
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94. In the discharge/transition section of almost every CHDC individual program plan, the IDT concludes that CHDC is the “least restrictive environment” for that person and simply claims the guardian’s assent or lack of interest in a more integrated setting. See FOF # 97. 95. For example, ZS’s 2008 IPP concludes that CHDC “is the least restrictive placement for [ZS],” and notes that “[ZS’s] mother and father are pleased with [ZS’s] placement.” US Ex. 206. His IPP further states that ZS would need to “acquire the skills necessary to transition through the Team hierarchy at CHDC before he could successfully function in a community setting,” US Ex. 206, even though his 2007 admission to CHDC was supposed to be a temporary placement while he waited for waiver services to be set up. US Ex. AG-1; A. Green Tr. 6802:21-25. 96. In another example, ET’s IPP concludes that CHDC is the least restrictive environment appropriate for his needs, US Ex. 127 at 10, however, he was discharged from CHDC on July 15, 2009. US Ex. 269 at US-CON-B-0034853; Richardson Tr. 559:1-17. 97. The overwhelming majority of CHDC IPPs reach the same conclusion – that the guardian wants the resident to stay at CHDC (or “is happy with CHDC”) and that CHDC is the least restrictive environment for each resident. US Exs. 105 at 9 (IPP for AN), 115 at 14 (IPP for CL), 122 at 10, 12 (IPP for DB), 124 at 11 (IPP for DG), 132 at 15 (IPP for HB), 134 at 12 (IPP for JN), 135 at 11 (IPP for JR), 138 at 14 (IPP at JM), 143 at 12 (IPP for JW), 149 at 11-12 (IPP for LR), 160 at 14-15 (IPP for ME), 161 at 15 (IPP for MF), 162 at 13 (IPP for MD), 166 at 10 (IPP for NP), 167 at 10-11 (IPP of OM), 173 at 10 (IPP for RC), 176 at 20 (IPP for RN), 178-2 at 10 (IPP for RW), 179 at 10 (IPP for RD), 191-2 at 18 (IPP for TC), 193 at 10 (IPP for TR),194 at 17 (IPP for TH), 199 at 11 (IPP for WF), 202-2 (IPP for WC), 206 at 15 (IPP for ZS), 561-21 (IPP for SA), 562-3 at 11 (IPP for MB), 563-34 (IPP for GB), 566-21 (IPP for DB), 578-40 at 9 (IPP for MS) & 579-15 at 12 (IPP for CW); see also US Exs. 101-1 at 15, 102-1 at 15, 103-1 at 16,
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109-1 at 17, 111-1 at 15, 113-1 at 10-11, 114-1 at 10, 129-1 at 9, 136-1 at 14, 139-1 at 11, 140-1 at 9, 146-1 at 9, 152-1 at 9-10, 156-1 at 12-13, 157-1 at 12-13, 163-1 at 16, 165-1 at 12, 171-1 at 10, 172-1 at 14, 175-1 at 10, 177-1 at 14, 180-1 at 13, 192-1 at 12, 196-1 at 12, 198-1 at 11 & 200-1 at 11 (redacted IPPs). 98. CHDC staff confirmed, both to expert Richardson during her tour of CHDC and later at trial, that IDT teams generally do not assess or even discuss a resident’s appropriateness for a more integrated placement unless the guardian first expresses an interest in community placement options. Richardson Tr. 555:3-556:7, 606:23-607:12; US FOF ## 99-105. 99. The head of CHDC social services, Angela Green, told expert Richardson that CHDC waited for parents to initiate the search for a more integrated placement. Richardson Tr. 555:312. According to Ms. Green, CHDC did so in order to avoid raising the hopes of families and individuals, if there is no realistic expectation that that placement could be made available. Richardson Tr. 555:3-12. At trial, Ms. Green denied using the term “false hope” in her conversation with expert Richardson. A. Green Tr. 6763:24-6764:4 (“I did not use that term with her.”). 100. Consistent with her remarks to Ms. Richardson, Ms. Green testified at her deposition that when an IPP sets forth the skills a resident needs to acquire prior to being considered for a more integrated setting, what that really means is that “the individual or guardian has not specifically requested alternate placement.” A. Green Tr. 836:2-15. 101. According to CHDC program coordinator Judy Weaver, at IPP meetings, staff discuss specific community services only after an individual’s guardian expresses interest in community placement. Weaver Tr. 413:7-413:22.
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102. Similarly, CHDC program coordinator Sarah Murphy agreed that CHDC interdisciplinary teams do not identify any particular providers who could meet the needs of a resident until a guardian expresses an interest in community placement. Murphy Tr. 502:22-503:8 (“the team always discusses the least restrictive setting and discusses other placement options generally, like the client going to the parents’ home, like Medicaid waiver services, you know, it’s general. When you get down to more specific options, then those would be pursued upon the client and/or guardian’s desire”), 501:15-502:9. 103. Team leader Rebecca Brewer testified that “the process of determining the appropriate setting essentially involves asking the guardian if they’re interesting [sic] in pursuing a community placement,” and whether they are “happy with the placement, do they want to pursue placement elsewhere, where do they think their family member is – you know, the most appropriate placement for the person they’re responsible for.” R. Brewer Tr. 1475:24-1476:8. 104. CHDC parent, Alan Fortney, testified that the guardian makes the initial recommendation regarding community placement and that typically the other team members accept that the guardian knows what is best for the resident and agree with the guardian. Fortney Tr. 1487:2-20, 1489:6-1492:6, 1503:6-18. 105. CHDC’s superintendent, Calvin Price, can recall only one time in his eight years at CHDC when an IDT initiated consideration of transferring an individual to a more integrated setting before a guardian requested community placement. Price Tr. 1706:14-22. 106. When originally questioned at trial, CHDC Director of Social Services, Angela Green, could not recall any instance when team members determined that a resident was appropriate for a more integrated setting without the guardian first agreeing. A. Green Tr. 837:14-21; see FOF ## 63-65 (responsibilities of social worker supervisor). However, Ms. Green later changed her
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testimony and stated she could recall “about two” times when an IDT recommended a resident be placed in a more integrated setting even though the guardian did not first agree to such a recommendation. A. Green Tr. 854:17-856:16. 107. Larry Brewer is the CHDC team leader of IAT, one of the five teams at CHDC. L. Brewer Tr. 1459:10-15; 1460:10-15, see US FOF # 67 (responsibilities of CHDC team leaders). He testified that after all of the annual reviews he has attended and IPPs he has reviewed in over 35 years of working at CHDC, he is not aware of any instances “where CHDC staff have determined that a resident is appropriate for community placement even though the parent or guardian disagrees.” L. Brewer Tr. 1464:19-1465:1. 108. When called by the United States to testify at trial, Rebecca Brewer, team leader for the HTT, confirmed her April 2010 deposition testimony that she could not recall any situation where an IDT recommended a resident for a more integrated setting in the absence of support for or interest in community placement by a guardian. R. Brewer Tr. 1476:9-1478:15, 6755:19-22. 109. When subsequently called to testify at trial by Defendants, Ms. Brewer changed her testimony to say she now recalled one time when the IDT recommended a resident for community placement despite the guardian’s objection to moving the individual to a more integrated setting. R. Brewer Tr. 6729:3-13, 6755:11-6756:2. Nevertheless, Ms. Brewer acknowledged that it is rare that the team recommends community placement unless the guardian first agrees. R. Brewer Tr. 6729:14-16. 110. Doug Hart is the team leader of the SLT, Hart Tr. 1926:9-14, and testified that he has never been to an IPP review meeting where the IDT recommended a more integrated setting without the guardian’s request or support. Hart Tr. 1930:8-14.
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111. Judy Weaver is a CHDC program coordinator and has worked at CHDC since 1979. Weaver Tr. 301:1-6; see FOF ## 71-73 (responsibilities of CHDC program coordinators). In her two years as a program coordinator, Ms. Weaver cannot recall a single incident of the treatment team and a resident’s guardian disagreeing about a community placement decision. Weaver Tr. 301:7-11, 402:17-402:24. 112. Ms. Weaver recalls only one individual on her caseload who was ever recommended for community placement. Weaver Tr. 401:22-402:10. 113. Sarah Murphy has worked at CHDC since 2001 and was a program coordinator for two and a half years. Murphy Tr. 434:9-19; see FOF ## 71-73 (responsibilities of CHDC program coordinators). Ms. Murphy cannot not identify any time in her two and a half years as a program coordinator in which an individual’s treatment team concluded that an individual was appropriate for a more integrated setting without a guardian’s support or agreement. Murphy Tr. 482:20-25. 114. Alan Fortney is the former President of the Conway Parent Association, the stepfather of a CHDC resident, and a frequent participant in his stepdaughter’s annual IPP reviews. Fortney Tr. 1485:3-15, 1497:21-1498:5. He could not recall ever attending an annual review where the IDT disagreed about whether CHDC was the most integrated placement appropriate for his stepdaughter. Fortney Tr. 1494:7-23.
3) Local Providers of Community Services Are Currently Serving Individuals Who Need the Same Supports and Services as Residents of CHDC.
115. The testimony of local providers of community services that they can serve individuals with the same needs as those at CHDC further demonstrates that CHDC’s assessments are not objective and reasonable. See FOF ## 116-140.
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116. Four community service providers from throughout the State of Arkansas reviewed IPPs for 46 CHDC residents to determine whether they could provide services to CHDC residents in a more integrated setting. US Exs. 101-1, 102-1, 103-1, 105-1, 109-1, 111-1, 113-1, 114-1, 118-1, 126-1, 129-1, 131-1, 136-1, 137-1, 138-1, 139-1, 140-1, 143-1, 146-1, 148-1, 152-1, 156-1, 1571, 163-1, 164-1, 165-1, 166-1, 167-1, 171-1, 172-1, 173-1, 175-1, 176-1, 177-1, 179-1, 180-1, 184-1, 185-1, 187-1, 192-1, 193-1, 196-1, 198-1, 199-1, 200-1 & 202-1 (redacted IPPs); see US Ex. 466 (Graca Decl. regarding redacted IPPs). These 46 IPPs represented a random selection of half the residents reviewed by community placement expert Richardson (21 residents), and half the residents reviewed by Defendants’ consultant Kastner (25 residents). US Ex. 466 (Graca Decl. regarding redacted IPPs). 117. All four providers were confident that they could serve the vast majority of the 46 CHDC residents whose IPPs they reviewed. See FOF ## 119, 124, 134 & 140.
First Step 118. Provider Pamela Bland is the Executive Director of First Step, Inc., a provider of community services for approximately 1,600 people with developmental disabilities throughout Arkansas. Bland Tr. 860:10-862:1. 119. With the exception of approximately 5 individuals for whom she wanted more information, First Step could serve all of the individuals described in the 46 IPPs she reviewed in a more integrated setting than CHDC. Bland Tr. 896:21-897:17. Provider Bland reviewed the IPP of no individual at CHDC that she affirmatively could not serve in the community. Bland Tr. 896:21-897:17. 120. For example, First Step could serve KH in a more integrated setting. Bland Tr. 876:3877:10; US Ex. 146-1 (Redacted IPP). KH is 30 years old and was admitted to CHDC in June
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2001. US Ex. 146-1. His IPP lists the discharges services he needs as: “specialized nutritional services, habilitation services, psychological services, 24-hour care and supervision, physical and occupational therapy, nursing and medical interventions, dental, specialized recreational services.” US Ex. 146-1 at 9. The CHDC team found that his guardians are “pleased” with his placement at CHDC and subsequently, teams made no alternative placement recommendations. US Ex. 146-1 at 3 & 9. Nevertheless, First Step can serve KH and currently serves similar individuals with similar needs and disabilities. Bland Tr. 876:3-877:21. 121. Similarly, First Step could serve MK. Bland Tr. 877:11-878:12; US Ex. 163-1 (Redacted IPP). He is 19 years old and was admitted to CHDC at the age of 16. US Ex. 163-1. He has cerebral palsy, seizure disorder, and hearing loss. Bland Tr. 877:11-878:12. MK’s IDT identified some of his significant needs to be identifying coins, cooperating with brushing his teeth, and improving his behavior. US Ex. 163-1 at 18. His long range goals, as listed in his IPP, are to “independently participate in a group activity” by 2011, “obtain 3 daily living skills” to help him “function more independently in (his) home,” and to “use the toilet independently.” US Ex. 163-1 at 18. 122. MK’s team concluded that CHDC is the least restrictive placement for him. US Ex. 1631 at 16. The team found that MK’s guardians are “pleased” with CHDC and that “the most appropriate transition plan for [MK] at this time would be for him . . . to continue to acquire the skills necessary to transition through the Team hierarchy at CHDC before he could successfully function in a community setting.” US Ex. 163-1 at 16. However, community providers like First Step provide training in independent living skills. See FOF # 198. In addition, First Step “commonly” provides services in the community for individuals with the same discharge needs that are identified in MK’s IPP. Bland Tr. 877:11-878:12; US Ex. 163-1 at 16 & 18.
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ICM 123. Provider Cynthia Alberding is the Executive Director of Independent Case Management (“ICM”), a provider of community-based case management and direct services to over 450 people with intellectual and developmental disabilities, with approximately 240 receiving direct care services. Alberding Tr. 1327:23-1328:3, 1331:13-1332:12. ICM provides services throughout the state, including in rural areas. Alberding Tr. 1335:14-24. 124. ICM could serve the CHDC residents described in all 46 IPPs, if funding was not an issue. Alberding Tr. 1397:11-1398:1. Of the 46, ICM could clearly serve 35 of the individuals in a more integrated setting. Alberding Tr. 1355:2-22, 1379:13-20 (ICM could serve all 46 individuals but 11 individuals required more information about costs of care). 125. For the individuals for which provider Alberding needed more information, her concern was whether she could provide staffing for their behavior needs on the waiver cap of $391/day. Alberding Tr. 1355:23-1356:12. If waiver funding was not capped, she could provide community-based services to all 46 individuals. Alberding Tr. 1368:4-16. 126. In 2007, Arkansas’s waiver expenditures per resident were $27,286. US Ex. 214 at 75. This is 33 percent less than the national average of $41,387. US Ex. 214 at 75. Arkansas’s federal match for Medicaid costs is the second highest match rate in the nation – the federal government pays 73.37 percent of Arkansas’s waiver expenditures. US Ex. 214 at 75, 77. (“As in all Medicaid programs, the federal government shares the costs of the ICF-MR and HCBS programs with the states as a function of the state per capita income relative to national per capita income”). 127. Provider Alberding did not review any IPP for a resident who she thought definitely could not be served in the community. Alberding Tr. 1355:2-22.
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128. Like First Step, ICM is also able to provide or secure each of the services that MK’s CHDC team stated he must have before discharge is to occur. Alberding Tr. 1364:8-1366:23 (“Direct care supervision and assistance 24 hours, yes. Assistance for shopping, yes. Nutrition, yes. Transportation, yes. Emergency care, yes. Training/active treatment, yes. Special education, yes. Recreation and leisure services, yes. Behavioral intervention, yes. Psychiatric services, yes. Case management, yes. OT, PT, speech, yes.”). 129. ICM is likewise able to serve JJ, who is 53 years old and was admitted to CHDC at the age of 11. Alberding Tr. 1372:16-1373:7; US Ex. 139-1 at 1 (Redacted IPP). JJ can “speak in short phrases or repeat most of what is said to him or from the TV.” US Ex. 139-1 at 12. He can express preferences, keep time to music, and initiate interactions with other people. US Ex. 1391 at 12-13. JJ’s team identifies his long range goals as identifying items, completing hand usage activities, completing three daily living skills, and identifying work related objects. US Ex. 1391 at 13. 130. JJ’s CHDC team concluded that the institution is the least restrictive placement for him because JJ needs to “acquire the daily living (wipe traytop/identify body parts) and self-help skills (wipe mouth) necessary to function in a community setting.” US Ex. 139-1 at 11. However, ICM can provide services to meet not only those daily skills-building needs, but also the additional discharge services listed as necessary in JJ’s IPP. Alberding Tr. 1372:16-1373:23; See FOF ## 197 & 226 (ICM provides for daily living skills, behavioral needs and also additional discharge needs listed above). 131. ICM is also able to serve ER in a more integrated setting. Alberding Tr. 1374:3-1375:18; US Ex. 131-1 (Redacted IPP). ER is currently 46 years old and was admitted to CHDC when she was 9 years old. US Ex. 131-1. ER is ambulatory and likes to go outside. US Ex. 131-1 at
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3. She can pour herself coffee, climb a fence, and use a treadmill. US Ex. 131-1 at 13. Her IDT identifies some of ER’s significant needs as identifying quarters from a variety of coins, matching color cards, and improving her behavior. US Ex. 131-1 at 14. ER’s team has identified her long range goals as doubling her work output and improving three self-help skills. US Ex. 131-1 at 14. 132. ER’s team found that CHDC “remains the least restrictive setting” for her and that in order for her to transfer to a more independent setting, she “needs to enhance her self-help and daily living-skills and vocational skills.” US Ex. 131-1 at 11. However, as already noted above, ICM provides training in daily living/independent living skills and, in addition, can provide for the discharge services listed as necessary in her IPP. Alberding Tr. 1374:3-1375:18; US Ex. 131-1 at 11-12; see FOF # 197.
Bost 133. Provider Jeff Lambert is the Assistant Executive Director of Bost, Inc., a provider of community services for approximately 700 people with developmental disabilities in northwest Arkansas. Lambert Tr. 1857:25-1858:12, 1859:16-23. 134. Of the 46 IPPs he reviewed, Bost could serve the individuals described in all of them if funding were not an issue. Lambert Tr. 1875:19-1878:1. Of the 46 individuals, Bost could serve 31 without any additional information. Lambert Tr. 1875:19-1878:1. For 9 with nursing care issues and 6 with behavioral health issues, provider Lambert wanted additional information to determine whether Bost could serve the individual under present waiver funding restrictions. Lambert Tr. 1875:19-1878:1. 135. For example, Bost could successfully serve RT, who is 68 years old and was admitted to CHDC in 1982. US Ex. 171-1 (Redacted IPP). RT “tends to entertain himself and enjoys
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spending time on the lawn swing outside his residence or having a cup of coffee on the patio.” US Ex. 171-1 at 3. He “gets along very well with other residents but sometimes appears tense or upset when other individuals become loud or disruptive in his residence.” US Ex. 171-1 at 3. RT can communicate his wants and needs, get dressed with assistance, and toilet independently. US Ex. 171-1 at 11. His IPP list of significant needs includes “match coins by value,” “select correct amount of simulated pills from a container,” and “time to relax/rest.” US Ex. 171-1 at 11-12. 136. CHDC’s team concluded that CHDC “remains the least restrictive placement alternative” for him and that to be considered for alternate placement, RT “would need to perform his selfcare tasks more independently and manage his Bipolar Disorder more independently.” US Ex. 171-1 at 10. RT’s IPP states that he would need the following services if discharged: “direct care/supervision (24 hour basis), immediate access to emergency care; specialized medical, dental, dietary and psychiatric services; work/training sites, day programming; transportation, behavioral intervention and recreation/leisure services.” US Ex. 171-1 at 10. 137. Bost can provide all of the services listed in RT’s discharge/transition plan in a more integrated setting, including the self-care training and behavioral health services raised as a barrier by his team. Lambert Tr. 1878:2-1880:19, 1871:13-1874:16; US Ex. 171-1; see FOF # 227. 138. Bost has successfully provided community-based services to individuals discharged from CHDC including a medically fragile individual from the “Willow” residence at CHDC. Lambert Tr. 1864:11-1866:17, 1885:6-19.
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Arkansas Support Network 139. Provider Keith Vire is Chief Executive Officer of Arkansas Support Network (“ASN”), a community-based services provider serving approximately 800 people with developmental disabilities, primarily in northwest Arkansas. Vire Tr. 1505:4-1508:5. 140. ASN could support and “support well” the individuals described in all 46 IPPs. Vire Tr. 1526:23-1527:22, 1540:24-1541:11; see also US Ex. 113-1; Vire Tr. 1528:6-1531:1 (ASN able to serve individuals with profound mental retardation); US Ex. 111-1; Vire Tr. 1531:2-18 (ASN successfully serves similar individuals with hearing impairments, chronic health problems, language delays, aggression and self-injurious behavior); US Ex. 143-1; Vire Tr. 1533:141536:14 (ASN can serve individual with behavioral issues who needs learn personal care skills); US Ex. 202-1; Vire Tr. 1537:24-1540:23 (ASN can serve individuals who have lived at CHDC for a long time). 141. ASN is able to serve individuals with diagnoses of “profound mental retardation.” Vire Tr. 1528:6-1531:1; US Ex. 113-1 (Redacted IPP). This includes individuals like BM, who is 20 years old and was admitted to CHDC at the age of 7. US Ex. 113-1 at 1. BM prefers one-to-one attention from family, friends, and staff. US Ex. 113-1 at 3. His team concluded that CHDC “remains the least restrictive alternative” for him. US Ex. 113-1 at 10. However, ASN could serve BM in a more integrated setting. Vire Tr. 1526:23-1527:1, 1528:8-14 (“this is a person who could really thrive in a community setting”). 142. ASN successfully serves individuals, similar to BB, who have hearing impairments, chronic health problems, language delays, aggression, and self-injurious behavior. Vire Tr. 1531:2-18; US Ex. 111-1 (Redacted IPP). BB is 18 years old and was admitted to CHDC at the age of 13. US Ex. 111-1 at 1. He has many independent and daily living skills including the
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ability to dress/undress himself, feed himself, and take out the trash. US Ex. 111-1 at 3. He can identify coins, brush his teeth, and “operate a coke machine.” US Ex. 111-1 at 17. During home visits, BB visits with family, watches TV, plays with toys, and goes shopping. US Ex. 111-1 at 3. His treatment team identified his significant needs as stacking paper, pouring medicine from a bottle into a cup, and opening a Band-Aid package. US Ex. 111-1 at 17. 143. The CHDC team concluded that institutionalization “remains the least restrictive alternative” for BB because he needs to “continue to learn skills in personal hygiene, prevocational skills, money management, and self-administration of medication to assist in preparing him with the tools necessary to move up the Team hierarchy and to eventually successfully function in the community.” US Ex. 111-1 at 15. However, ASN can serve BB and individuals who have disabilities similar to BB in a more integrated setting. Vire Tr. 1531:2-18, 1521:8-1522:1 (Acquisition of self-care skills and independent living skills is not a barrier to transition to participation in ASN’s community service programs); US Ex. 111-1; see FOF ## 197-198. 144. ASN can serve JW, who is 22 years old and was admitted to CHDC in October 2006. Vire Tr. 1533:14-1536:14; US Ex. 143-1 at 1 (Redacted IPP). His IPP states that he is “totally dependent” on others to provide care for him. US Ex. 143-1 at 3. His IPP also finds that in order for JW to be successful in the community, he would need an “attendant for personal care, grooming, hygiene; specialized nutritional/dietary services; transportation services; communication facilitator; specialized medical services including OT and PT; work skills training and supervision; and recreational services.” US Ex. 143-1 at 12. Even though his team concluded that CHDC remains the least restrictive alternative for him, US Ex. 143-1 at 12, ASN currently serves individuals who, like JW, have behavioral issues and need to learn personal care
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skills. Vire Tr.1533:14-1536:14; see FOF ## 198 & 228 (ASN serves individuals with developmental disabilities who have extremely challenging behaviors and mental health issues). 145. ASN can also serve individuals like WC, who have lived at CHDC for a long time. Vire Tr. 1537:24-1540:23; US Ex. 202-1. WC is 50 years old and was admitted to CHDC when he was 14. US Ex. 202-1 (Redacted IPP). He can eat with utensils, dress/undress himself, make his bed, fold laundry, buckle his own seatbelt, clean small appliances, and use a staple puller. US Ex. 202-1 at 11-12. WC’s team identified his significant needs as “clean oven with less prompts,” arrive on time for work, and improve tooth brushing. US Ex. 202-1 at 12. His IPP identifies his discharge service as “direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary and psychiatric services; communication facilitator; day programming; work sites/situations, transportation and recreation/leisure services.” US Ex. 202-1 at 10. 146. WC’s team concluded that CHDC “remains the least restrictive alternative” for him and that to be considered for alternate placement, WC “would need to have his behaviors of aggression under better control, expand his work skills, and perform self-care/daily living skills more independently.” US Ex. 202-1 at 10. However, as noted above, ASN provides training for those individuals who need more personal care skills and services for those with behavioral issues. Vire Tr. 1533:14-1536:14; see FOF ## 198 & 228. In addition, ASN has successfully served individuals who have lived in institutions for long periods of time. Vire Tr. 1538:51539:2. 147. Although funding might be an issue for some medically fragile individuals, ASN could serve all 46 individuals represented in the redacted IPPs if there was no cap on waiver services. Vire Tr. 1561:22-1562:8.
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4) CHDC Staff Conceded That Many Individuals at CHDC Can Be Served in More Integrated Settings.
148. CHDC staff admitted that some residents who are not currently recommended for a more integrated setting could nevertheless have their needs met in the community. See FOF ## 149-157. 149. For example, in a discussion of CHDC resident LW, CHDC program coordinator Sarah Murphy acknowledged that community providers could provide the “consistency and structure” identified as a key reason that CHDC is an appropriate placement for him. Murphy Tr. 475:19476:10; US Ex. 153. Nevertheless, his interdisciplinary team concluded that CHDC is the least restrictive environment for him. US Ex. 153 at 18. 150. In a discussion of CHDC resident NP, CHDC program coordinator Donna Clendenin testified to her belief that the services necessary to meet NP’s needs are available in the community. Clendenin Tr. 1590:12-1594:4. Nevertheless, his interdisciplinary team identified CHDC as the least restrictive setting for him. Clendenin Tr. 1590:12-23; US Ex. 166 at 10. 151. Similarly, during a discussion of CHDC resident DB, Ms. Clendenin testified to her belief that the services necessary to meet his needs are available in the community. Clendenin Tr. 1609:20-1611:24; US Ex. 122. His interdisciplinary team identified CHDC as the least restrictive setting for him. US Ex. 122 at 12. 152. Likewise, during a discussion of CHDC resident JB, Ms. Clendenin testified to her belief that the services JB needs are available in a more integrated setting. Clendenin Tr. 1628:191629:10; US Ex. 142. 153. Several CHDC staff admitted that community services providers can provide the training identified in CHDC residents’ IPPs as a prerequisite for consideration for community placement.
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For example, Ms. Rebecca Brewer, a CHDC team leader, testified that many of the skills taught to residents at CHDC, such as “hygiene, self-care skills, baking,” are taught by providers in more integrated settings. R. Brewer Tr. 6753:3-12. 154. CHDC program coordinator Sarah Murphy testified that CHDC residents should not be barred from placement in a more integrated setting because they need to acquire self-care skills and greater independence. Murphy Tr. 477:22-478:6. 155. In his own community practice, CHDC’s chief psychologist sees residents with the same types of medical and other issues related to their developmental disabilities that he sees in CHDC residents, and those individuals in the community are being adequately served in the community. Reddig Tr. 2020:15-24. 156. Similarly, CHDC psychological examiner, Anita Cooper, testified that many of the behavioral services provided at Conway, such as interviewing staff to assess residents or training staff on strategies on managing behaviors, can “probably” be provided in the community as well. Cooper Tr. 2421:4-8, 2454:6-2455:12. 157. The speech-language services offered at CHDC can be provided in a community setting. Johnson Tr. 5399:17-5401:3.
5) CHDC Treatment Teams Lack Sufficient Information or Knowledge Necessary To Make Objective, Reasonable Assessments Regarding the Most Integrated Setting Appropriate for Individuals at CHDC.
158. The CHDC staff who participate in the interdisciplinary teams, including the annual review meetings, and make decisions regarding the most integrated setting appropriate for CHDC residents, must have an accurate understanding of what services are available in the community and what the benefits are of living in an more integrated setting. Richardson Tr.
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607:21-608:8, 611:25-613:3, 616:17-617:13, 628:22-630:5 (CHDC needs a “real education effort to help people understand how important community services are and to get to know them, to get to know them well.”). 159. Treating professionals at CHDC, however, do not have sufficient knowledge and training regarding community integration and community options to provide objective, reasonable assessments to individuals and their guardians. Richardson Tr. 611:10-24, 615:7-10. As a result, CHDC residents and guardians do not receive sufficient information from CHDC about the supports and services available, and the possibilities and benefits of a more integrated setting. Richardson Tr. 616:17-618:6; US Ex. 264; see FOF ## 299-317. 160. Angela Green, the CHDC director of social services and staff person most knowledgeable about community placement, is not familiar with all of the services available in the community, for example, what daily living skills are necessary or what behavioral skills are required. A. Green Tr. 826:11-828:25. 161. Ms. Green was not even aware of the existence of a DDS waiver guide until April 2010, when a community service provider gave her a copy. A. Green Tr. 6797:17-25 (“Pathfinder had copies of this [the ACS waiver guide].”). At her deposition Ms. Green was unable to identify any benefits of living in settings more integrated than CHDC, other than being able to choose where one lives. A. Green Tr. 829:8-830:9. Only in response to defense counsel’s obviously leading questions was Ms. Green able to identify any other benefits of living in more integrated settings. A. Green Tr. 848:23-849:13. 162. The social service workers that Ms. Green supervises receive little to no formal training regarding more integrated placements available in Arkansas. A. Green Tr. 820:25-821:22, 825:7-14 (testifying that in nine years, DDS has done three trainings for program specialists
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/social workers at CHDC). Nor do they receive any formal training on the ADA. A. Green Tr. 824:11-20. Nevertheless, they are “responsible for providing information to residents and guardians for residents on their caseload about community placement options.” A. Green Tr. 819:23-820:10. They are also responsible for helping residents and guardians locate an appropriate placement when requested. A. Green Tr. 819:23-820:10. 163. CHDC Superintendent Price is not familiar with what services are offered outside of CHDC by Arkansas’s community providers. Price Tr. 1710:8-21. Superintendent Price does not know what types of behavioral services are available in the community. Price Tr. 1711:14-17. 164. Superintendent Price does not know what services, if any, CHDC provides that cannot be obtained through a community program. Price. Tr. 1715:10-1716:4 (“I’m not sure. I don’t know. It gets back to I’m not quite sure what all those community providers, what type of services that they offer in their individual programs, so I would have a tough time answering that one . . . . I'm just not sure what a lot of the programs have to offer as far as those services. Many of the programs we’ve heard here today are basically – are nonresidential programs, so I’m really not sure what type of those services that they offer. I’m really not.”). 165. Similarly, CHDC team leaders have little understanding of what supports and services are currently available in community programs. Richardson Tr. 615:15-616:3; see FOF # 67 (responsibilities of CHDC team leaders). For example, one team leader informed Ms. Richardson that she had not investigated community placements, had not read about them, and did not know much about them. Richardson Tr. 615:15-23. Another team leader said that he knew community placement was an option, but that CHDC was the best so it was not necessary to spend time on the issue. Richardson Tr. 615:25-616:3.
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166. The trial testimony of CHDC team leaders underscores their lack of knowledge and training about community placement options. For example, Rebecca Brewer testified that she hasn’t visited a community placement in “over ten years,” R. Brewer Tr. 1478:16-20, and does not “have a sense of the specific services that are offered in the community.” R. Brewer Tr. 1478: 16-25; see FOF ## 67 & 69 (Team leader Rebecca Brewer is the current team leader of the HTT, the team from which the majority of CHDC residents transition to more integrated settings). 167. In fact, Ms. Brewer admitted that she does not believe that placements in the community provide the same quality of services that are available at CHDC. R. Brewer Tr. 1479:1-4. 168. When asked how many residents from one CHDC team, HTT, had been identified as appropriate for a more integrated setting and are currently waiting for placement, Ms. Brewer estimated that “close to ten” HTT residents were currently on the waiting list for community placement. R. Brewer Tr. 1479:5-15. In fact, CHDC identified only four residents in the entire facility as appropriate for a more integrated setting. A. Green Tr. 836:16-837:9; US Ex. 284-1. 169. Team leader of CHDC team SLT, Doug Hart oversees the care of 105 residents and supervises 165 staff members. Hart Tr. 1926:14-21. Mr. Hart has never visited a community placement in Arkansas or any other state. Hart Tr. 1927:23-1928:2. Mr. Hart does not have any “sense what services are available in the community,” or what the significant barriers to transitioning to a more integrated setting are for the residents on his team. Hart Tr. 1928:3-5, 1928:11-16. He has not received any training on community integration or community placement since working at CHDC and, prior to having his deposition taken by the United States in April 2010, was not familiar with the term “Olmstead Plan.” Hart. Tr. 1928:17-1929:12.
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170. Likewise, Larry Brewer supervises approximately 180 staff and 66 residents as the IAT team leader. L. Brewer Tr. 1460:10-18; 1462:3-5. As team leader, he is also supposed to provide clinical supervision to the program coordinators. L. Brewer Tr. 1463:4-7; US Ex. 279; R. Brewer Tr. 1474:24-1475:1; Hart Tr. 1927:2-4. Mr. Brewer erroneously believes that there are not more integrated settings than CHDC in Arkansas that could serve a school-aged individual who has “self-help skill needs [and] aggression.” L. Brewer Tr. 1467:2-6; see FOF ## 197, 198 & 225-228 (Community providers can serve children who have aggressive behaviors and/or need self-help skills.). 171. For more than two years, Judy Weaver served as a CHDC program coordinator without any knowledge about what services existed in the community. Weaver Tr. 403:16-404:11; see FOF ## 71-73 (responsibilities of a program coordinator). 172. Program coordinator Judy Weaver has not visited a community provider, received training on the ADA, or received training on the Supreme Court’s decision in Olmstead v. L.C. Weaver Tr. 406:5-406:25. 173. CHDC program coordinator Sarah Murphy believes CHDC is an “integrated setting.” Murphy Tr. 504:2-6. 174. Ms. Murphy’s knowledge of what services are available in the community is limited to her personal internet research, what CHDC social workers have told her, and informal conversations with community providers. Murphy Tr. 505:11-506:4. 175. Program coordinator Murphy has not visited community providers in her role at CHDC. Murphy Tr. 4944:8-20 (“I can’t think of any I’ve been to.”).
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176. Ms. Murphy was the program coordinator for CHDC resident TC, but did not know whether all of the services TC needed could be provided in the community. Murphy Tr. 473:22475:18; US Exs. 191 & 191-2. 177. CHDC’s training curriculum discusses community integration policy but contains no substantive training about community placement, community services, or the Arkansas ACS waiver program. Richardson Tr. 611:10-24. For example, the CHDC new employee certification, US Ex. 226, does not include any documents with information about community services and how they relate to CHDC nor any discussion of the relationship between community services and residents’ opportunities to live and experience a more integrated setting. Richardson Tr. 611:25-612:21. 178. Similarly, the CHDC annual retraining outline, US Ex. 227, contains no information indicating that transition to more integrated settings is part of the training. Richardson Tr. 613:416; US Ex. 227. 179. One CHDC PowerPoint training contains a few slides touching on least restrictive environments, waiver, and deinstitutionalization. Richardson Tr. 613:20-614:9; US Ex. 228. This is the only substantive information regarding community integration for CHDC employees. Richardson Tr. 614:2-9; US Ex. 228. 180. Arkansas community providers, such as Pathfinders, Easter Seals, and United Cerebral Palsy, are not invited to provide regular training at CHDC regarding their services, nor does CHDC communicate with many community providers about their services. Richardson Tr. 590:23-591:15, 614:23-615:6; Bland Tr. 866:2-867:12; Alberding Tr. 1338:17-20; Lambert Tr. 1866:18-1869:16; Vire Tr. 1523:10-19.
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181. CHDC teams demonstrated their lack of sufficient training at annual review meetings, by failing to substantively discuss community placement. Richardson Tr. 616:12-617:21; see Richardson Tr. 549:11-550:4. 182. Psychology staff receive little or no training on how to assess residents for community placement or how to implement federal statutes requiring treatment in the most integrated or least restrictive setting. Cooper Tr. 2453:20-2454:5.
6) Individual Program Plans Demonstrate CHDC’s Failure To Conduct Objective, Reasonable Assessments of Whether Individuals are Appropriate for a More Integrated Setting.
183. CHDC Individual Program Plans reflect CHDC’s failure to provide objective, reasonable assessments. They are generic, repetitive, and identify non-existent barriers to placement in a more integrated setting. See FOF ## 79, 80 & 82 (Requirements for CHDC program plans). 184. Thus, of the 40 IPPs that community placement expert Richardson reviewed, she found that the vast majority did not reflect an adequate assessment of whether the individuals described could be served in a more integrated setting, as required by the ADA and CHDC’s own policies. Richardson Tr. 552:22-553:1 (“What I was saying is these people need to be looked at more carefully and a more thorough transition plan needs to be designed so that it can be very clear what the benefits might be and what kind of services would need to be explored in order to make an appropriate community placement for these people.”), 553:11-25, 557:24-558:6. 185. Based on her examination of 40 IPPs, Ms. Richardson concluded that most of the individuals at CHDC did not receive a reasonable assessment and needed a more careful and individualized evaluation to determine how they could benefit from a more integrated placement and what specific services would be necessary. Richardson Tr. 550:5-552:5, 553:18-554:2.
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186. The absence of reasonable assessments at CHDC prevents further development of community services. Richardson Tr. 618:7-23. Without detailed information about CHDC residents who could live in a more integrated setting, including accurate information about what services they would need, providers of community-based services cannot develop or increase the availability of those services so as to create further opportunities for CHDC residents. Richardson Tr. 618:7-23. 187. Individual program plans demonstrate CHDC’s failure to provide objective, reasonable assessments and reflect CHDC staff’s lack of knowledge and training regarding community integration. Richardson Tr. 611:2-6. 188. CHDC individual program plans are generic and repeatedly identify the same illegitimate barriers to transition to a more integrated setting, such as the need to acquire daily living skills or rectify behavioral issues. Richardson Tr. 529:2-9, 610:27-611:9. Furthermore, CHDC IPPs fail to describe the specific services that are necessary for a resident to successfully transition out of CHDC. Richardson Tr. 529:2-9, 551:21-552:5.
i. CHDC Teams Use the Acquisition of Skills as an Inappropriate Barrier to Placement in a More Integrated Setting.
189. In 11 of the 40 IPPs that community placement expert Richardson reviewed, the IDT required the acquisition of skills of some sort before the individual could be placed in a more integrated setting, or included language regarding needing more independence or self-help skills in order to secure community placement. Richardson Tr. 560:24-561:12, 579:21-580:17. These IPPs require that individual residents “earn” their way into a community placement or learn social skills or basic self-care skills in order to qualify for more integrated setting. Richardson Tr. 529:23-530:8, 551:12-20.
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190. LR is 57 years old and was admitted to CHDC on January 19, 2000. US Ex. 149 at 1. His IPP states that in order to move to a less restrictive environment he “would need to acquire more independent self-care skills and be able to follow daily activities with less assistance.” US Ex. 149 at 11. 191. KF is 19 years old and was admitted to CHDC on December 11, 2006. US Ex. 148. Her IPP states that the acquisition of independent living skills is a requirement before discharge is appropriate. US Ex. 148 at 13 (“For discharge to be appropriate, [KF] will need to be more independent in following a daily routine (for basic self-care and daily living).”); Richardson Tr. 559:23-561:5. 192. WF is 70 years old and was admitted to CHDC on April 22, 1975. US Ex. 199 at 1. As in KF’s IPP, the transition/discharge plan in WF’s IPP notes that in order to be considered for community placement WF must “improve self-care and communications skills, and expand work skills.” US Ex. 199 at 11. 193. JN is 40 years old and was admitted to CHDC on March 7, 1978. US Ex. 134 at 1. As with KF and WF, the transition/discharge plan in JN’s IPP states that he “would need to be more independent in self-care and have his aggression under control” to be considered for community placement. Richardson Tr. 585:12-586:1; US Ex. 134 at 12. 194. Many other CHDC IPPs contain boilerplate, inappropriate skill acquisition requirements as part of the discharge/transition plan. US Exs. 105 at 9 (IPP for AN), 112 at 14 (IPP for BR), 115 at 14 (IPP for CL), 121 at 12 (IPP for CA), 122 at 12 (IPP for DB), 124 at 11 (IPP for DG), 126 at 11 (IPP for DN), 127 at 10 (IPP for ET), 132 at 15 (IPP for HB), 135 at 11 (IPP for JR), 138 at 14 (IPP for JM), 142 at 12 (IPP for JB), 145 at 13 (IPP for KH), 160 at 14-15 (IPP for ME), 161 at 15 (IPP for MF), 162 at 13 (IPP for MD), 167 at 10-11 (IPP for OM), 176 at 20 (IPP
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for RK), 179 at 10 (IPP for RD), 181-2 at 12 (IPP for RC), 194 at 17 (IPP for TH), 206 at 15 (IPP for ZS), 561-21 at 12 (IPP for SA), 562-3 at 11(IPP for MB), 563-34 at 11-12 (IPP for GB) & 566-18 at 15 (IPP for DB); see also US Exs. 103-1 at 16, 109-1 at 17, 111-1 at 15, 114-1 at 10, 131-1 at 11, 136-1 at 14, 139-1 at 11, 140-1 at 9, 152-1 at 9-10, 156-1 at 12-13, 163-1 at 16, 1651 at 12, 171-1 at 10, 172-1 at 14, 175-1 at 10, 180-1 at 13, 185-1 at 11, 187-1 at 11, 196-1 at 12 & 198-1 at 11 (redacted IPPs). 195. The acquisition of daily living skills, as used by CHDC IDTs, is not a legitimate reason for precluding individuals from a setting more integrated than CHDC. Richardson Tr. 561:1325. Such conditional statements inappropriately place the burden on the individual to earn placement outside of CHDC. Richardson Tr. 562:1-6. It is, in addition, an outdated concept in the field of developmental disabilities, and as such, the acquisition of such skills is not a necessary ingredient for moving into a more integrated setting. Richardson Tr. 578:25-579:15, 580:3-17. 196. Community providers can and do train individuals with intellectual and developmental disabilities in basic self-care and social skills so that qualifying for placement by learning or acquiring those skills is not necessary. Richardson Tr. 561:18-25 (“Community providers teach those skills, so you really don’t have to have them to go into a community setting.”), 529:23530:8. 197. Providers of community-based services for individuals with developmental disabilities, such as Independent Living Services, Inc., Easter Seals, Pathfinders, Inc., and United Cerebral Palsy, are able to provide or secure the independent living skills training and daily living services that are identified in CHDC IPPs. Richardson Tr. 591:16-25, 592:11-593:16 (provided services
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include nursing care, direct supervision/24-hour care, adaptive equipment, occupational therapy and physical therapy). 198. In addition, all of the local community providers that testified at trial stated that their organization provides training in these areas, including independent self-care skills and daily living skills. Bland Tr. 892:4-895:5, 896:12-20, 900:17-21; Alberding Tr. 1347:22-1351:12; Lambert Tr. 1871:13-1874:16; Vire Tr. 1512:19-1516:22, 1521:8-1522:1 (testifying that acquisition of self-care skills and independent living skills is not a barrier to transition to a more integrated setting whether that setting is supported with community services provided by ASN or any other program in the state). 199. It is quite possible that some individuals with developmental disabilities may never gain some basic daily living skills, yet they can effectively be served in a more integrated setting. Richardson Tr. 605:11-15, 561:18-25, 529:25. 200. For example, many CHDC IPPs include the need for institutionalized residents to learn how to brush their teeth even though few residents can brush their teeth to the satisfaction of the institution. Richardson Tr. 605:11-18. 201. Ms. Richardson testified that she does not know of any states where children are institutionalized because they cannot brush their teeth, comb their hair, or count money. Richardson Tr. 610:16-19. 202. Nevertheless, CHDC requires that such skills be acquired before some individuals will be considered for a more integrated setting. Richardson Tr. 610:20-611:1. The use of such barriers reflects that the teams at CHDC do not understand what community providers can do in terms of teaching residents about skill development. Richardson Tr. 611:2-6. Such requirements also indicate that such plans are incomplete. Richardson Tr. 611:7-9.
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203. IPPs as recent as June 2010 contained long-range goals to improve an individual’s skills in order to function better at CHDC. Murphy Tr. 4952:16-4953:17; US Ex. 134-2 at 15 (IPP for JN) (“By 2011, I will have self-help, daily living skills, and communication to function more independently in my present residence.”).
ii. CHDC Teams Use the Transition of Residents Through the CHDC Team Hierarchy as an Inappropriate Barrier to Placement in a More Integrated Setting.
204. Many CHDC IPPs state that individual residents must progress through CHDC’s fiveteam structure in order to be placed in a more integrated setting. Richardson Tr. 578:7-21; see US FOF # 66 (CHDC team structure). The concept of requiring progress through an institution’s team structure is outdated, unnecessary, and inappropriate. Richardson Tr. 578:7-579:12. Recommendations regarding placement in more integrated settings should be designed to fit the needs of individuals and not depend on whether individuals have earned a more integrated placement. Richardson Tr. 579:12-14. 205. CHDC staff state that this concept is no longer implemented. Richardson Tr. 578:7-21. Nevertheless, many IPPs contain language demonstrating that CHDC still uses the concept of an individual transitioning through the teams in order to be considered for or placed in a more integrated setting. Richardson Tr. 578:25-579:5; see US FOF ## 197, 198, 225-228 (Arkansas community-based service providers serve individuals who need skills training and have behavioral health issues). 206. For example, RN is 52 years old and was admitted to CHDC on February 8, 2000. US Ex. 176. RN’s IPP contains the following language under the heading “placement issues”: “The most appropriate transition plan for [RN] at this time would be for him to acquire the skills
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necessary to transition through the Team hierarchy at CHDC before he could successfully function in a community setting.” US Ex. 176 at 20. 207. Likewise, RC is 30 years old and was admitted to CHDC on October 26, 2000. Richardson Tr. 577:1-4; US Ex. 173. Her IDT concluded that in order for her to successfully function in a community setting, she must acquire the independent and communication skills necessary to “transition through the Team hierarchy at CHDC.” Richardson Tr. 578:2-6; US Ex. 173 at 10. 208. JM is 23 years old and was admitted to CHDC on April 16, 2004. US Ex. 138. His IPP states, “[t]he Team agreed the most appropriate transition plan for [JM] is for him to move to a higher functioning Team and continue to gain the skills (independence in personal care, daily living, vocational skills, and improved behavior) needed in order to move up the Team hierarchy prior to successfully functioning in the community.” US Ex. 138 at 14. 209. ZS is 12 years old and was admitted to CHDC on August 7, 2007 – for what was supposed to be a temporary placement until waiver services could be set up for him. US Exs. 206, AG-1; A. Green Tr. 6802:21-25. Yet his IPP also concludes that “the most appropriate transition plan for [ZS] at this time would be for him to acquire the skills necessary to transition through the Team hierarchy at CHDC before he could successfully function in a community setting.” US Ex. 206 at 15. 210. AN’s plan includes the following language: “The optimal transition plan for [AN] is to continue training in personal hygiene/grooming skills and training to foster independence with the desired outcome of transition through the team hierarchy at the Center and eventual community placement.” US Ex. 105 at 9.
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211. HB is 14 years old and was admitted to CHDC on March 8, 2005. US Ex. 132. His IPP states that “the team agreed the most appropriate transition plan for [HB] is continue to learn skills in personal hygiene, money management, daily living, and behavior improvement prior to moving up the Team hierarchy and successfully functioning in the community. US Ex. 132 at 15. 212. ME is 48 years old and was admitted to CHDC on June 6, 1968. US Ex. 160. His IPP states that “the Team agreed the most appropriate transition plan for [ME] is that he continue to learn skills in personal hygiene, daily living, prevocational tasks, and that he improve his behavior. The above areas are possible barriers to him transitioning up through the Team hierarchy prior to successfully functioning in the community.” US Ex. 160 at 15. 213. CA is 18 years old and was admitted to CHDC on September 21, 2006. US Ex. 121. His IPP states that “to transition to a less restrictive setting, [CA] needs to acquire the skills (vocational, daily living) to move through the Team hierarchy at CHDC.” US Ex. 121 at 12. 214. MF is 24 years old and was admitted to CHDC on January 16, 2008. US Ex. 161. His IPP states, “the most appropriate transition plan for [MF] at this time would be for him to acquire the skills necessary to transition through the Team hierarchy at CHDC before he could successfully function in a community setting.” US Ex. 161 at 15; see also US Exs. 109-1 at 17, 111-1 at 15, 163-1 at 16, 196-1 at 12 (Redacted IPPs with similar or identical “transition through the team hierarchy” language).
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iii. CHDC Teams Use Behavioral Improvements as an Inappropriate Barrier to Placement in a More Integrated Setting.
215. Similarly, CHDC interdisciplinary teams inappropriately raise behavioral health issues or the necessity of improving behavior as a barrier to potential placement in a more integrated setting. Richardson Tr. 551:12-20. 216. With the right supports, individuals with behavioral health issues can succeed in a setting more integrated than CHDC. Richardson Tr. 560:15-23, 603:1-8. In fact, changing an individual resident’s environment by reducing distractions and increasing personal attention can potentially improve an individual’s behavior. Richardson Tr. 603:1-8; see US FOF # 36 (Expert Matson testified that children in institutions learn maladaptive behaviors from one another). 217. CHDC’s own Strategic Plan supports this conclusion by calling for a reduction in the number of individuals at CHDC in order to increase personal space. Richardson Tr. 603:9-13; US Ex. 235. 218. CHDC Superintendent Calvin Price testified that for some individuals, less personal space can exacerbate violent and other maladaptive behaviors. Price Tr. 1682:6-15. 219. The IPP for DG is an example of how CHDC uses behavioral improvement as a barrier to community placement. DG’s IDT concludes that one of the things she has to do in order to be considered for a less restrictive setting is learn to handle frustrating situations better and, specifically, without destroying clothing. Richardson Tr. 601:24-602:4; US Ex. 124 at 11. DG’s IPP notes that she has some behavior issues, including the fact that she tears clothing and tries to flush it down the toilet. Richardson Tr. 602:7-9; US Ex. 124:4. Expert Richardson testified that her behaviors are a response to frustration and that this frustration may be reduced in a less crowded environment. Richardson Tr. 602:16-22. A change in an individual’s environment,
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reduction in distraction, and an increase in personal attention can increase an individual’s ability to handle such behaviors. Richardson Tr. 602:16-22. 220. Likewise, the IPP for JR notes that in order to be considered for a less restrictive environment, he needs to follow his routine without continued staff direction and learn to express his anxiety and frustration without aggression. US Ex. 135 at 11. JR’s IPP notes that his behaviors included destruction of property and crying – actions attributed to attempts to get attention. US Ex. at 11; Richardson Tr. 604:13-18. JR does not have significant behavioral issues when he visits his parents at their home, during off-campus outings, or in the recreation room. Richardson Tr. 604:19-22, 743:24-744:3; U.S. Ex. 135 at 3, 8, and 9 (JR also works at a restaurant off-campus.). If JR were to be placed in a more home-like environment and felt comfortable, those behaviors may decrease. Richardson Tr. 604:24-605:3. 221. JB is 17 years old and was admitted to CHDC on March 18, 2009. US Ex. 142 His IPP states that “to be considered for alternate placement [JB] would need to be able to perform selfcare needs without constant monitoring; express his frustration/agitation in acceptable social mannerisms, and show more awareness and concern for his personal safety.” Id. at 12. 222. The IPP for JN is an example of how CHDC uses behavioral improvement as a barrier to community placement. The IPP notes that he needs to have his aggression under control to be considered for community placement. US Ex. 134 at 12; Richardson Tr. 585:19-586:1. 223. Many CHDC IPPs contain the same or similar requirements regarding improvement in behavior as part of the discharge/transition plan. Richardson Tr. 551:12-20; US Exs. 115 at 14 (IPP for CL), 122 at 12 (IPP for DB), 132 at 15 (IPP for HB), 134 at 12 (IPP for JN), 138 at 14 (IPP for JM), 145 at 13 (IPP for KH), 148 at 13 (IPP for KF), 160 at 15 (IPP for ME), 191-2 at 18 (IPP for TC), 562-3 at 11 (IPP for MB), 563-34 at 12 (IPP for GB), 132 at 15 (IPP for HB),
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561-21 at 12 (IPP for SA), 566-21 at 15 (IPP for DB), 579-15 at 12 (IPP for CW); see also 103-1 at 16, 165-1 at 12, 172-1 at 14, 180-1 at 13, 185-1 at 11 (redacted IPPs). 224. Nevertheless, every Arkansas community provider who testified at trial stated that their organizations serve individuals with behavioral issues in settings that are more integrated than CHDC. US FOF ## 225-228. 225. Community services provider First Step can serve children and adults with developmental disabilities who have behavioral issues, including individuals who express agitation in socially unacceptable ways, have explosive behaviors, need 24-hour direct-care, are unconcerned for their personal safety, and/or who have co-occurring mental health needs. Bland Tr. 892:4-895:5, 900:17-21, 896:12-20, 925:19-926:5. 226. Community services provider ICM provides behavioral services and serves individuals with developmental disabilities who need 24-hour direct care, cannot express agitation in a socially acceptable manner, have explosive behaviors and/or aggression, and do not appear to have concern for their personal safety. Alberding Tr. 1347:22-1351:12, 1351:13-1352:5. 227. Community service provider Bost, Inc., serves “numerous individuals that have severe, severe behaviors.” Lambert Tr. 1909:8-20. Bost provides services for individuals with developmental disabilities who have serious mental health issues, explosive behaviors, aggression, are not good at following directions, and have significant behavioral needs. Lambert Tr. 1871:13-1874:16. Bost has never refused to serve anyone due to the seriousness of their behavioral needs. Lambert Tr. 1909:8-20. 228. Community service provider Arkansas Support Network serves individuals with developmental disabilities who have extremely challenging behaviors and mental health issues including children with serious behavioral needs. Vire Tr. 1511:8-1512:8,1512:19-1515:18.
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iv. CHDC Teams Use Residents’ Medical Needs As an Inappropriate Barrier to Placement in a More Integrated Setting.
229. Similarly, CHDC interdisciplinary teams inappropriately raise residents’ medical needs/physical health issues as barriers to potential placement in a more integrated setting. Richardson Tr. 601:2-8. Individuals with developmental disabilities and significant health needs can live in the community with appropriate supports. Richardson Tr. 574:22-25. 230. In her 40 years of work with individuals with developmental disabilities, community placement expert Richardson has met many individuals with developmental disabilities, like those CHDC residents described below, who have significant medical needs but live in more integrated community settings. Richardson Tr. 574:22-25, 575:1-3, 601:2-5; US FOF ## 235238. 231. For example, TR’s IPP describes him as having significant medical issues, which include cerebral palsy with spastic quadriplegia and some associated issues regarding his skin and ability to swallow. Richardson Tr. 600:20-601:1; US Ex. 193. Individuals with developmental disabilities like TR can live in the community with appropriate services. Richardson Tr. 601:2-5. 232. Expert Richardson reached this same conclusion regarding SH, though he has significant health needs as well. Richardson Tr. 574:11-20; US Ex. 186 (SH is non-ambulatory and has low verbal skills.). 233. Likewise, SA has significant health needs including the fact that she is nonverbal, walks with assistance, and may need tube feeding. US Ex. 184 at 12. Her discharge/transition plan does not contain any information as to why CHDC is the least restrictive environment appropriate for her needs. US Ex. 184 at 3. SA’s transition/discharge plan is generic and not individualized to her needs, as demonstrated by the following list of services and supports: “24-
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hour direct care supervision and assistance; specialized medical/dental services; specialized nutritional services, eating equipment and G-tube feeding equipment; Habilitation training; psychiatric services and behavioral intervention; therapies (PT); recreation and leisure services; specialized transportation and accessibility.” Richardson Tr. 581: 20-22; US Ex. 184 at 12; see also US Exs. 101-1 at 15, 102-1 at 15, 152-1 at 9-10, 157-1 at 3, 177-1 at 14-15 (Redacted IPPs). 234. Expert Richardson had the opportunity during her tour of more integrated settings outside CHDC to meet a woman with developmental disabilities who had considerable physical limitations and needed help with all aspects of her daily living, but was living in an apartment/group home as part of the ACS waiver program. Richardson Tr. 575:4-14, 575:22-23. This individual’s limitations included the need for a special lift to transfer her from a bed to a chair, a special arrangement for bathing and assistance from other individuals for eating and dressing. Richardson Tr. 575:15-21. 235. Providers of community services for individuals with developmental disabilities in Arkansas provide services for individuals with significant medical issues. US FOF ## 236-238. First Step provides services for both children and adults with serious medical issues, Bland Tr. 892:4-895:5; 896:12-20, 900:17-21, and serves such individuals in non-dormitory settings that also include non-medically fragile individuals. Bland Tr. 883:18-884:4. First Step provides care for individuals who are non-ambulatory, nonverbal, hearing impaired, and blind as well as those who have dementia, brittle bones, and suffer from seizures. Bland Tr. 883:18-884:4. First Step provides care to individuals who need 24-hour direct care, 24-hour nursing care, feeding tubes, and texture diets. Bland Tr. 883:18-884:4.
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236. ICM provides services to individuals with developmental disabilities who have brittle bones, special positioning needs, dysphagia, extensive seizures, feeding tubes, modified texture diets, and ventilators. Alberding Tr. 1347:22-1351:12. ICM serves individuals who need resuscitation regularly and/or 24-hour direct care as well as individuals who are nonverbal, nonambulatory and/or have visual and auditory impairments. Alberding Tr. 1347:22-1351:12. 237. Bost provides services to individuals who are non-ambulatory, nonverbal, ventilator dependent, hearing impaired, and/or blind. Lambert Tr. 1871:13-1874:16. Bost serves individuals who need 24-hour direct care, 24-hour on-call nursing services, feeding tubes, modified texture diets, and special positioning. Lambert Tr. 1871:13-1874:16. Bost serves individuals who have dysphagia, dementia, brittles bones, and extensive seizures. Lambert Tr. 1871:13-1874:16. 238. ASN serves adults and children with developmental disabilities who have severe medical needs and are medically fragile. Vire Tr. 1512:19-1515:18. ASN provides services to individuals who are non-ambulatory and nonverbal, as well as those who require 24-hour direct care, 24-hour nursing care, feeding tubes, modified texture diets, and special positioning. Vire Tr. 1512:19-1515:18. ASN serves individuals who have frequent seizures. Vire Tr. 1512:191515:18.
v. CHDC Individual Program Plans Fail To Provide Specific Information Regarding What an Individual Would Need To Transfer out of CHDC.
239. CHDC IPPs fail to provide a description of what a resident actually needs to live in an integrated setting, beyond a generic list of services. Richardson Tr. 529:2-9, 550:5-551:11. Even when IPPs have useful information, there is no application of this information that would
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assist the team, resident, or guardian with understanding how the resident could move to an appropriate, more integrated setting. Richardson Tr. 580:20-581:5. 240. Most CHDC plans do not include, for example, specifically what type of specialized medical care or behavioral health intervention the individual would need, what kind of specialist would be required, or what type of and how often transportation might be necessary. Richardson Tr. 550:7-24, 551:1-11 (testifying that one would expect to see these elements in a program plan). 241. CHDC staff corroborated this assessment. CHDC program coordinator Donna Clendenin testified that CHDC IPPs do not identify the specific barriers to a resident’s placement in a more integrated setting and do not provide a plan to overcome those barriers. Clendenin Tr. 1608:31609:10. 242. CHDC program coordinator Sarah Murphy also stated that CHDC residents’ IPPs do not identify the extent to which a person needs any given service. Murphy Tr. 483:16-484:7, 486:13-487:14. 243. Furthermore, program coordinator Donna Clendenin testified that CHDC program coordinators do not contact community providers to determine whether they are able to provide services that meet the specific needs of an individual. Clendenin Tr. 1608:3-1612:22, 1610:191612:22; 1614:17-1616:2. 244. CHDC guardian Mr. Barry Landen testified that CHDC has never discussed a specific facility or placement with him. Landen Tr. 6858:3-10.
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vi. CHDC Discharge/Transition Plans Fail To Identify the Specific Supports and Services an Individual Would Need in the Community or Describe Community Placement Options.
245. IPPs fail to describe the community options available to an individual or identify the specific supports and services the individual would need in the community. Richardson Tr. 580:18-581:5, 581:23-582:11. 246. Instead, each IPP only contains a generic transition plan that includes a “canned” list of general services the individual might need in the community such as medical care, dental services, occupational therapy, physical therapy, and/or speech therapy. Richardson Tr. 550:515; Bland Tr. 882:8-17 (redacted CHDC IPPs are repetitive); Vire Tr. 1527:2-10 (IPPs “seemed to be a template”); Alberding Tr. 1370:4-14 (transition plan sections of IPPs are a “canned” list of what teams conclude residents need); see also US FOF ## 79, 80, and 82 (CHDC program plans must be individualized). 247. The repetition and lack of individualization in CHDC IPPs are self-evident. Further review of individual plans demonstrates that they generally repeat the same, often identical, discharge services. Richardson 529:2-9; US FOF ## 248-263. Of the 15 discharge/transition service plans described below, all 15 require “direct care/supervision (24-hour basis),” access to emergency care, medical services, dietary services, dental services, day programming, transportation, and recreation/leisure services. US FOF ## 248-262. Eleven plans require a communication facilitator. US FOF ## 249-252, 255-261. Nine require psychiatric services. US FOF ## 249, 250, 253, 254, 257-261. Seven require “work sites/situations.” US FOF ## 248, 251-255, and 257. Not 1 of the 15 plans has a discharge service requirement that is unique to that person. US FOF ## 248-262.
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248. For example, the discharge services described for CHDC residents JN and RW are exactly the same. US Exs. 134-2 at 10, 178-2 at 12; Murphy Tr. 488:22-489:3, 490:5-12. 249. The discharge/transition plan of ET’s IPP states that for discharge to be appropriate for him, the following services should be available: “[D]irect care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary and psychiatric services; behavioral intervention; communication facilitator; day programming; transportation; and recreation/leisure services.” US Ex. 127 at 10; Richardson Tr. 558:19-25 (ET’s plan is “generic.”). 250. KF’s discharge/transition plan states that her discharge needs are “direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary, and psychiatric services; behavioral intervention; communication facilitator; training/day programming; transportation; and recreation/leisure services.” US Ex. 148 at 13; Richardson Tr. 561:1-5 (noting that list of discharge services needed is generic). 251. MD’s discharge/transition plan states the following: “For discharge to be appropriate the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental and dietary services; communication facilitator; day programming/training; work sites/situations; transportation and recreation leisure services.” US Ex. 162 at 13. 252. RD’s discharge/transition plan states, “for discharge to be appropriate, the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental and dietary services; communication facilitator; day programming training; work sites/situations; transportation; and recreation leisure services.” US Ex. 179 at 10.
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253. LR’s IPP discharge/transition plan states, “for discharge to be appropriate, the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary and psychiatric services; training/day programming; transportation; behavioral intervention and recreation leisure services.” US Ex. 149 at 11-12. 254. JR’s IPP discharge/transition plan states that the following services should be available if he is discharged: “direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary and psychiatric services; day programming/training; work sites/situations; transportation; and recreation/leisure services.” US Ex. 135 at 11. 255. WF’s program plan states, “for discharge to be appropriate for [WF] the following services should be available: direct care/supervision (24-hour basis); immediate access to emergency care; specialized medical, dental, and dietary services; communication facilitator; work sites/situations; training/day programming; transportation (wheelchair accessible); and recreation leisure services.” US Ex. 199 at 11. 256. TR’s discharge/transition plan lists the services he needs if discharge is to be considered by his IDT: “For discharge to be appropriate, the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, and dietary services; communication facilitator; day programming; transportation and recreation/leisure services.” US Ex. 193 at 10. 257. DG’s IPP transition plan states that “for discharge to be appropriate, the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, psychiatric and dietary services; behavioral
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intervention; communication facilitator; training/day programming; work sites/situations; transportation; and recreation/leisure services.” US Ex. 124 at 11. 258. DB’s IPP states, “for discharge to be appropriate, the following services should be available: direct care/supervision (24-hour basis), immediate access to emergency care, specialized medical, dental, dietary, and psychiatric services, communication facilitator for consistency, day programming, transportation, and recreation/leisure services.” US Ex. 566-21 at CON-US-0149254. 259. MB’s IPP states that for discharge to be appropriate, the following services should be available: “direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary, and psychiatric services; behavioral intervention; communication facilitator; training day programming; transportation; and recreation/leisure services. US Ex. 562-3 at 11. 260. GB’s IPP’s discharge/transition plan states, “for discharge to be appropriate, the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary, and psychiatric services; behavioral intervention; communication facilitator; day programming; transportation; and recreation/leisure services.” US Ex. 563-34 at 11-12. 261. CW’s IPP states “for discharge to be appropriate, the following services should be available: direct care/supervision (24 hour basis); immediate access to emergency care; specialized medical, dental, dietary and psychiatric services; communication facilitator; day programming; transportation and recreation/leisure services.” US Ex. 579-15 at 12. 262. SLA’s transition/discharge plan lists her needs as “24-hour direct care supervision and assistance; specialized medical/dental services; specialized nutritional services, eating equipment
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and G-tube feeding equipment; habilitation training; psychiatric services and behavioral intervention; therapies (PT); recreation and leisure services; specialized transportation and accessibility.” US Ex. 18 at 12. 263. Most, if not all, of the CHDC IPPs are like the examples above and have the same or similar generic list of required discharge services. Richardson Tr. 550:5-8; Bland 882:8-17; Vire Tr. 1527:2-10; Alberding Tr. 1370:4-14; US Exs. 105 at 9 (IPP for AN), 112 at 14 (IPP for BR), 119 at 13 (IPP for CG), 121 at 12 (IPP for CA), 122 at 12 (IPP for DWB), 126 at 11-12 (IPP for EN), 138 at 14 (IPP for JM), 143 at 12 (IPP for JW), 167 at 11 (IPP for OM), 173 at 10-11 (IPP for RC), 179 at 10 (IPP for RD), US Ex. 184 at 12 (IPP for SLA), Richardson Tr. 581: 20-22 (SLA’s plan is generic and not individualized); U.S. Exs. 186 at 10 (IPP for SH), 191-2 at 18 (IPP for TC), 194 at 17 (IPP for TH), 206 at 15 (IPP for ZS), 132 at 15 (IPP for HB), 561-21 at 13 (IPP for SA), 578-40 at 9 (IPP for MS), 580-9 at 8 (IPP for LW); see also US Exs. 101-1 at 15, 103-1 at 16, 111-1 at 15-16, 113-1 at 10, 114-1 at 10, 118-1 at 13, 129-1 at 9, 131-1 at 11-12, 136-1 at 14, 137-1 at 14, 139-1 at 11, 140-1 at 9, 146-1 at 9, 152-1 at 9-10, 156-1 at 12-13, 157-1 at 12-13, 163-1 at 16, 164-1 at 18, 165-1 at 12, 171-1 at 10, 172-1 at 14, 175-1 at 10, 180-1 at 13, 185-1 at 11, 187-1 at 11, 192-1 at 12-13, 196-1 at 12, 198-1 at 11-12, 200-1 at 11 (redacted IPPs). 264. CHDC staff admit that the IPPs contain stock language and that CHDC plans are repetitive. CHDC program coordinator Donna Clendenin conceded that CHDC IPPs contain stock transition planning language laying out only the broad services an individual would require to live in the community. Clendenin Tr. 1608:3-1612:22.
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265. CHDC program coordinator Sarah Murphy testified that CHDC IPPs repeat generic activities as “significant needs” across several clients. Murphy Tr. 492:16-493:2, 498:20-499:10; US Exs. 134-2, 178-2, and 202-2. 266. Ms. Murphy also recognized that many of the services listed as discharge needs are services that every individual needs, whether the person has a developmental disability or not. Murphy Tr. 488:21-489:21 (agreeing that everybody needs emergency care, dental care, dietary care, medical care, transportation, work and leisure); US Ex. 178-2.
vii. CHDC Fails To Annually Re-Assess Residents’ Discharge/Transition Plans.
267. CHDC policy requires treatment teams to evaluate annually each individual’s eligibility for CHDC, including whether the individual’s needs could be met in a more integrated setting. Defs. Ex. 912 at 170 (DDS Policy 1086); see also Porter v. Knickrehm, 457 F.3d 794, 797 (8th Cir. 2005). 268. CHDC fails to conduct this assessment in some cases and instead simply uses the same discharge/transition plan from year to year. See US FOF ## 79, 80, and 82 (responsibilities of IDT and annual review meeting). This is further evidence that CHDC program plans are generic and formulaic. Richardson Tr. 529:2-9. It also demonstrates that CHDC teams fail to find or plan for more integrated settings for CHDC residents. Richardson Tr. 572:1-9; US Exs. 143 and 143-2. 269. For example, 22 year-old JW’s 2008 transition/discharge plan is identical to his 2009 transition/discharge plan. Richardson Tr. 571:17-25; US Exs. 143 at 12, 143-2 at 14. Although JW’s guardian expressed some interest in a more integrated setting, US Ex. 272, CHDC has
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failed to make any active effort to find such a setting or create a plan for placement for him. Richardson Tr. 572:1-9; US Exs. 143, 143-2. 270. Similarly, there is no difference between ten year-old T.C.’s 2007 and 2008 discharge/transition plans. Richardson Tr. 568:21-23; US Exs. 191 at 17, and 191-2 at 17. This is particularly concerning because of the destructive effects of childhood institutionalization and the risks of long term institutionalization. Richardson Tr. 548:5-17, 568:24-569:3; US Exs. 191 at 18, 191-2 at 17; see US FOF ## 34-37 (expert Matson testimony regarding effects of childhood institutionalization). 271. TC’s IPP states that his behavior was improving, and that an improvement in behavior was required for discharge. US Ex. 191-2 at 3, 18. It also states that his grandmother is considering taking care of him. US Exs. 191 at 17, 191-2 at 17. Despite these significant changes in TC's circumstances, his IPP was unchanged. Richardson Tr. 568:21-23; US Exs. 191 at 17, 191-2 at 18. It does not state what is being done to prepare supports for his grandmother so that an eventual discharge could be successful. Richardson Tr. 563: 9-16; US Ex. 191-2 at 3, 18. 272. RC is a 15-year-old female. She was admitted to CHDC at the age of 12 and is in the custody of the Division of Child and Family Services. US Exs. 181, 181-2. Her 2008 and 2009 transition plans are identical. US Exs. 181, 181-2; Clendenin Tr. 1633:12-1636:4. Her IPP lists her as having a mild intellectual disability. US Ex. at 181-2. 273. RW is a 48-year-old male who has resided at CHDC since he was 10 years old. US Exs. 178, 178-2. Despite assertions that IPPs became more detailed between 2009 and 2010, RW’s discharge/transition plan remained identical during those years. US Exs. 178, 178-2; Clendenin Tr. 1598:15-1602:11.
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viii. CHDC Interdisciplinary Teams Identify Long Range Goals and Significant Needs in CHDC Individual Program Plans That Are Biased Towards Continued Institutionalization.
274. CHDC IPPs also fail to prepare individual residents for discharge by establishing long range goals or significant needs for residents that are not individualized and act as barriers to consideration for a more integrated setting. Richardson Tr. 585:4-11, 610:20-611:1. 275. CHDC IPPs long range goals are not geared toward individuals’ eventual independence and/or discharge, despite CHDC’s policy that “increased competence/independence in successfully less restrictive settings” is the “foundation for all decisions regarding services” and “[t]he annual review is driven by th[is] belief.” US FOF ## 79, 80, 82 (requirements of CHDC IPP policy). 276. For example, many CHDC IPPs contain similar long range goals that indicate, both explicitly and implicitly, that the individual resident will remain at CHDC. US FOF ## 277-287. 277. “By 2015 I will continue to reside at CHDC.” US Ex. 178-2 at 13 (IPP for RW). 278. “By 2012, I will have the social self-help and daily living skills enabling me to function more independently in my present residence.” US Ex. 124 at 13 (IPP for DG). 279. “By 2012, I will have the self-help and daily living skills enabling me to function more independently in my present residence.” US Ex. 127 at 12 (IPP for ET). 280. “I will establish greater independence in daily living and person hygiene in order to function more effectively in my home at CHDC during the next 5 years.” US Ex. 138 at 17 (IPP for JM). 281. “I will maintain my physical/cognitive skills allowing me to work ¾ of a day in jobs on campus”. US Ex. 162 at 15 (IPP for MD).
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282. “By 2012, I want to be employed at an on campus job to make spending money.” US Ex. 173 at 13 (IPP for RC). 283. “By 2012 I will have self-care and daily living skills enabling me to function more independently in my present residence.” US Ex. 179 at 12 (IPP for RD). 284. “I will establish greater independence in daily living and personal hygiene in order to function more effectively in my home at CHDC during the next 5 years.” US Ex. 195 at 18 (IPP for TN). 285. “By 2012, I will have communication, self-help, and daily living skills enabling me to function as independently as possible in my present residence.” US Ex. 199 at 13 (IPP for WF). 286. “By 2012, I will learn appropriate behaviors in order to function more independently in his [sic] environment at CHDC and home visits.” US Ex. 206 at 17 (IPP for ZS). 287. “By 2012 I will have self-help and daily living skills enabling me to function independently in my present residence.” US Ex. 135 at 13 (IPP for JR); accord US Exs. 112 at 15 (IPP for BR), 115 at 16 (IPP for CL), 119 at 14 (IPP for CG), 134-2 at 15 (IPP for JN), 142 at 14 (IPP for JB), 143 at 14 (IPP for JW), 161 at 17 (IPP for MF), 561-21 at 14 (IPP for SA), 56334 at 14 (IPP for GB), 579-15 at 14 (IPP for CW); see also US Exs. 101-1 at 17; 103-1 at 18; 114-1 at 12; 118-1 at 14; 140-1 at 11; 156-1 at 15; 163-1 at 18; 165-1 at 15; 171-1 at 12; 177-1 at 17; 180-1 at 15; 185-1 at 13; 200-1 at 13 (Redacted IPPs). 288. Other CHDC individual program plans contain boilerplate goals that are impersonal, not individualized, and are not needs that require continuing institutionalization. Richardson Tr. 582:17-583:4, 610:20-611:1; US Ex. 184 at 14.
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289. For example, SLA’s IPP lists her long range goals as having three self-help skills by 2013 and identifying 6 functional items by 2012. Id. In assessing these goals, expert Toni Richardson stated:
Well, for the year 2013, her long-range goal is to have three self-care skills independently. That’s – that certainly might be a goal, but is that the important goal for this person? Are there goals around making friends, having contacts in her community? Those are the kind of things I would look for in personal long-range goals, something that was really going to make her life more meaningful, because, in my experience, self-care skills, while important and while you want to work on them, I don't think most people want to spend a lifetime on tooth brushing or pulling on their shirt or whatever, combing their hair. And it’s one of those skills that if you can teach it to the person, teach it; if you can’t, work around it, in my way of thinking. Richardson Tr. 582:16-583:4; see also US Exs. 186 at 12 (IPP for SH), 121 at 13 (IPP for CA), 132 at 17 (IPP for HB), 149 at 14 (IPP for LR), 153 at 21 (IPP for LW), 146-1 at 12, 160 at 17 (IPP for ME), 191 at 19 (2007 IPP for TC), 191-2 at 19 (2008 IPP for TC), 562-3 at 13 (IPP for MB), 184 at 14 (IPP for SLA), 202-2 at 14 (IPP for WC), 101-1 at 17, 113-1 at 13, 129-1 at 11, 131-1 at 14, 136-1 at 17, 139-1 at 13, 167-1 at 15, 172-1 at 16, 187-1 at 13 (redacted IPPs). 290. The community services providers who reviewed redacted CHDC IPPs noted that CHDC IPPs long range goals were not geared toward individuals’ eventual independence and/or discharge. See US FOF ## 79, 80, 82 (requirements of CHDC IPP policy). 291. For example, when discussing US Ex. 163-1 (redacted IPP), community provider Pam Bland of First Step testified that she was unsure as to what outcome the interdisciplinary team sought to achieve through the long range goals. Bland Tr. 880:6-24 (“If that person acquires those social behaviors that allow them to follow a daily routine, what would the outcome be? Would the outcome be that they are back at home, back in the community, back in the public school?”). Provider Bland testified that “an overall goal for a person with these skills is for them to live independently in a group home or in their own apartment and have a job.” Bland Tr.
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881:11-15; US Ex. 148-1 at 14 (skills include naming shapes, cutting with scissors, reading/writing the alphabet and ability to print name). 292. Community services provider ICM could serve an individual whose long term goal was inappropriately geared toward CHDC, and not toward a more independent community setting. Alberding Tr 1360:7-1362:20; US Ex. 156-1 at 15 (long range goals listed as: “By 2012, I will expand my skills in discrimination/identifying items in order to function more effectively in my home at CHDC. By 2012, I will expand my self-help skills in order to function more effectively in my home at CHDC.”); see also Vire Tr. 1533:14-1536:14 (individual in question has the long range goal of remaining at CHDC); US Ex. 143-1 at 14 (“I will perform activities of daily living on a level that will allow me to function more independently in my living environment during the next 3-5 years.”). 293. When CHDC interdisciplinary teams include objectives such as tooth brushing and money management in CHDC program plans, they neglect goals that make an individual resident’s life “more personal, more normal, less restrictive, more integrated . . . life isn’t all about skill programs.” Richardson Tr. 698:10-21, 583:8-13 (“reading the plans and looking at the policy, it looks like people generally are asked to find a goal in money management. I think every single person I read had a goal in money management or around medication administration. Everybody had some kind of a goal around medication administration, whether it looked like they really had some potential to do it or some interest in doing it.”). 294. Further examples include the IPP of TN which lists participating in a gardening activity, identifying five colors, and holding money for 60 seconds among his significant needs. Weaver Tr. 392:4-392:20; US Ex. 160.
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295. The interdisciplinary team for CHDC resident ZS, identified organizing his closet, making his bed, identifying combinations of coins, and matching textures as some of his significant needs. Weaver Tr. 393:6-393:11, 396:11-397:2; US Exs. 206, JW-3. 296. The interdisciplinary team for CHDC resident JN identified his significant needs as performing a laundry task more independently, weighing paper on a scale, working for long periods without stopping, returning to work after a distraction, matching coins, and tearing perforated paper more independently, among others. Murphy Tr. 484:11-484:22; US Ex. 134-2. 297. The interdisciplinary team for WC identified some of his significant needs as weighing paper on a scale, arriving to work on time, and improving his teeth-brushing skills. Murphy Tr. 494:14-23; US Ex. 202-2. 298. RD’s IPP lists significant needs such as “wash hands independently” and “match coins.” US Ex. 179 at 12.
F. Defendants’ Failure To Provide Objective, Reasonable Assessments Deprives Individuals and Guardians of Information Sufficient To Make Informed Choices About Community Placement.
299. Without the benefit of an independent, objective assessment based on the individual’s needs, individuals and their guardians are denied sufficient information about the resources, possibilities, and benefits associated with a more integrated setting. Richardson Tr. 555:21556:7; see also US FOF ## 79, 82 (CHDC program plans should be specific to an individuals’ long range goals, behavioral objectives, and service objectives and should address how these objectives can be achieved in the least restrictive environment.). 300. Only with an objective, reasonable assessment, and an opportunity to discuss particular alternatives to continued institutionalization based on the individual’s strengths and needs, can
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residents or guardians make an informed choice as to whether they wish to pursue a more integrated setting or not. Richardson Tr. 618:1-6. 301. When the individuals who work with residents every day are not informed regarding the supports and services available in the community and the potential benefits of a more integrated environment, then guardians and residents are apt to walk away with an inaccurate impression of what the life of their loved one would be like in a more integrated setting. Richardson Tr. 616:23-617:13, 618:1-6. 302. Guardians and residents who have experienced long term residential care are often reticent regarding the possibility of placement in a more integrated setting. Richardson Tr. 608:19-22. However, they are also positive about placement in a more integrated setting once they have that experience. Richardson Tr. 608:19-609:5; see Richardson Tr. 609:6-10 (research supports this conclusion). 303. When individuals and their guardians do not have information about what options are available and what is possible, then they are unlikely to state that they would like to try a more integrated setting than CHDC. Richardson Tr. 608:9-18, 617:22-618:4 (Residents, guardians and decision-makers “need a good, solid objective view. Even though it might be painful to hear because they don’t want to think about leaving, it’s important that they know what well-informed professionals think is possible.”); see also Richardson Tr. 616:23-617:13 (noting that guardians rely on staff for information about the day-to-day life of residents). 304. Before ever attending the annual review or receiving any assessment or recommendation from the IDT regarding whether their loved one is appropriate for a more integrated setting, CHDC guardians are required to complete a “choice form,” on which they identify whether they are seeking waiver services or HDC services. Defs Ex. 406 (Choice Form); A. Green Tr.
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6777:24-6778:8, 6800:1-9. Prior to being asked to designate their choice on this form, the only information guardians receive is a list of nearby community providers and the services they provide, and a general informational packet about the Waiver process. Murphy Tr. 501:15502:17. CHDC social service workers do not discuss with guardians what waiver services are until after they have made their choice between HDC or waiver services. Green Tr. 6799:36800:8. 305. Furthermore, CHDC social worker supervisor Angela Green also admitted that “as CHDC is notified of vacancies in alternative placements close to family/guardian, they’ll inform the residents, families of the vacancy. When interest is expressed, the resident, family, or guardian are encouraged to tour and talk with staff at the placement.” A. Green Tr. 838:11-17; Richardson Tr. 556:17-21; US Ex. 264. 306. CHDC’s five team leaders confirmed that CHDC does not talk to its residents and families about waiver except to let them know that waiver exists. Richardson Tr. 555:23-556:7. 307. Testimony from CHDC parents and guardians confirms that they are not properly informed regarding community placement and more integrated settings appropriate for CHDC residents. CHDC guardian Michael Black testified that CHDC teams have mentioned the waiver option but did not explain to him specific services like EPSDT and wrap-around services. M. Black Tr. 6830:21-23 (“Q. Does CHDC speak to you about waiver options at the IPP meeting? A: They mention them, yes.”), 6838:1-11. As a result, Mr. Black did not know of any alternate placements because it was his understanding that “there aren’t any.” M. Black Tr. 6840:3-14. 308. Mr. Black stated that if an alternate placement was available, he would consider it. M. Black Tr. 6840:11-14.
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309. CHDC guardian Larry Taylor testified that he would love to see [C] “in a little home in Hillcrest” but that his belief is that “it’s not going to happen.” L. Taylor Tr. 5075:11-14; see US FOF # 117 (Community providers can provide services for majority of individuals at CHDC). 310. CHDC guardian Earline Stoddard testified that CHDC did not tell her that community service providers offered total care. E. Stoddard Tr. 3254:5-8; see US FOF # 232 (CHDC guardian testified that CHDC never discussed specific facility or placement). 311. CHDC annual review meetings, which provide an opportunity for team members, residents, and guardians to discuss the assessments memorialized in the IPP, provide little or no discussion of the most integrated setting unless such discussion is requested by the guardian. Richardson Tr. 549:11-18. The IDT teams, observed by expert Richardson during two annual review meetings, mentioned the waiver program and referenced community life but did not actually discuss the barriers to placement in a more integrated setting or how the individual resident could benefit from placement in a more integrated setting. Richardson Tr. 607:1-12; see Richardson Tr. 549:11-18. 312. In one annual review, expert Richardson observed that the discussion of community options was brief and almost apologetic. Richardson Tr. 549:15-550:4 (“I know we have to talk about this again this year, but . . . .”). In the other meeting, when the CHDC resident was asked for his input, he stated, “I would like to get a home,” but the rest of the meeting focused on why he was going to remain at CHDC. Richardson Tr. 549:15-550:-4. The team added that “if you behave and if you learn your skills, then maybe someday we’ll be able to find a home for you.” Richardson Tr. 550:1-4; see US FOF ## 225-228 (CHDC’s use of behavioral improvement as a barrier to community placement).
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313. Absent discussion about the possibilities and benefits of placement in a more integrated setting, guardians are not given appropriate information about what may be possible for each individual. Richardson Tr. 607:15-17 (“I don’t know how else you decide what the least restrictive, most integrated setting would be for somebody unless you talk about what would be possible.”). 314. Defense psychiatric consultant Andrew Warren sat in on one annual IPP meeting. He described the way the team addressed community placement issues with the guardian as “I think it was mentioned that we have to say this to you . . . .”. Warren Tr.4810:14-4811:8. He saw no indication of an independent professional assessment about community placement. Warren Tr.4810:14-4811:8. 315. Erline Stoddard is the mother and guardian of a longtime CHDC resident. Stoddard Tr. 3230:17-25-3231:1. Ms. Stoddard testified that at her son’s annual IPP reviews, the IDT does not provide her with information about providers that offer the specific services her son would need to be supported in the community, Stoddard Tr. 3253:5-3254:8, 3259:7-12, nor does the IDT make a recommendation regarding the most integrated setting appropriate to her son’s needs, once Ms. Stoddard informs them she is not interested in pursuing community placement. Stoddard Tr. 3243:8-10. 316. Larry Taylor, guardian of a longtime CHDC resident, testified that the discussion of community placement options for his sister at her annual reviews consists of the IDT asking him, “do you think [C] would be happier somewhere else? Do you want to explore other options?” L. Taylor Tr. 5075:3-10. 317. Barry Landon is the brother and guardian of a longtime CHDC resident. He testified that the IDT asks him during annual reviews if he would like to discuss waiver options and that when
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Case 4:09-cv-00033-JLH Document 218 Filed 02/10/11 Page 87 of 318 he says, “no,” that is the end of the discussion regarding his brother’s appropriateness for a more integrated setting. Landon Tr. 6857:19-6858:2. Nevertheless, Mr. Landon’s brother is capable of regular home visits in Mr. Landon’s home and has never experienced an emergency or major problem during these visits. Landon Tr. 6860:3-9. The IDT does not raise particular placement options with Mr. Landon, Landon Tr. 6858:3-10, even though Mr. Landon testified that such information would be useful and he would want to have it. Landon Tr. 6861:6-19.
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III. CONCLUSIONS OF LAW– VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT A. The ADA Requires Defendants to Provide CHDC Residents with Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting. Defendants are discriminating against individuals at CHDC by failing to ensure that they
are serving them in the most integrated setting appropriate to their needs, in violation of the ADA. Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” and “to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for [individuals with disabilities].” 42 U.S.C. § 12101(a)(7) and (b)(1). In doing so, Congress emphasized that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
Title II of the ADA prohibits discrimination in access to public services by requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA implementing regulations include an “integration mandate.” See 28 C.F.R. § 35.130(d) ( “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”). The regulations define the most integrated setting as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A.
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In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court held that unjustified segregation of persons with disabilities in institutions like CHDC constitutes the type of discrimination Title II of the ADA prohibits. In doing so, the Court emphasized that when Congress enacted the ADA, it explicitly recognized as a form of discrimination the “unjustified ‘segregation’ of persons with disabilities.” Id. at 600. The Court reasoned that this recognition reflected two judgments by Congress about the serious harm that unnecessary isolation causes individuals:
First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Id. at 600-01 (citations omitted). In construing the integration mandate, the Court held that a violation is established if the institutionalized individual is “qualified” for community placement, that is, if he or she can “handle or benefit from community settings” and does not oppose community placement. Olmstead, 527 U.S. at 601-03.2 In Olmstead, the plaintiffs were two institutionalized individuals who wanted to move to the community and whose treating professionals agreed that community placement was appropriate. Id. at 602-03. Thus, the fact that the plaintiffs were “qualified” for a more integrated setting was not in dispute. Id. In the context of the facts before it, the Court acknowledged that a state could generally rely on “the reasonable assessments of its own

2

The state, however, may assert an affirmative defense that serving a particular individual

in the most integrated setting would “entail a ‘fundamenta[l] alter[ation]’ of [its] services and

programs.” Id. at 603 (plurality opinion) (first two alterations in original).

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professionals” to determine “whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community-based program.” Id. at 602 (emphasis added).
Subsequent cases have emphasized, however, that “Olmstead does not allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 540 (E.D. Pa. 2001); Long v. Benson, No. 08cv26, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) (noting that the State “cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community”); see also Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 259 (E.D.N.Y. 2009) (recognizing that violations of the ADA’s integration mandate are not limited to where the State’s own professionals have determined an individual is appropriate for a more integrated setting); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 291 (E.D.N.Y. 2008) (same). Such perverse results would render the integration mandate virtually meaningless. Therefore, for a public entity, such as CHDC, to aver that it is “administer[ing] services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d), it must provide an objective, reasonable assessment of whether the individual can “handle or benefit from community settings.” Olmstead, 527 U.S. 601-02.
An assessment is not an objective determination of an individual’s capability of residing in a more integrated setting if it is only conducted when an individual or guardian affirmatively seeks community services. Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 329, 338 (D. Conn. 2008) (rejecting the notion that an assessment of individuals’ appropriateness for community placements is required only in those cases “in which a class member, a parent, or a
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guardian has explicitly asked for community placement” and finding that “[s]uch an attitude is inconsistent with the integration mandate of the ADA.”). Nor should clinical assessments of whether an individual could be supported in a more integrated setting be limited to consideration of what is currently available in the community. Id. at 330 (IDTs should consider community placement for residents “‘without consideration of availability of resources.’”) (quoting testimony of defense consultant Dr. Walsh); see also US FOF ## 85 (Defendants’ consultant Kastner testifying that a treatment team’s determination regarding the most appropriate setting for a resident should be separate from the guardian’s decision about placement), 86 (Defendants’ consultant Walsh testifying that availability of services should not be a bar to a recommendation for community placement).
Rather, an objective, reasonable assessment must be based on the individual’s needs and consideration of the services necessary to meet those needs. An individual must be provided the option of a particular alternative to continued institutionalization based on an objective, reasonable assessment. 28 C.F.R. pt. 35, app. A (“[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation.”); Messier, 562 F. Supp. 2d at 338 (The ADA “regulations do not conceive of a resident’s option to decline community placement as a right that is to be exercised before any professional judgment has been brought to bear. Rather, the regulations state that ‘persons with disabilities must be provided the option of declining to accept a particular accommodation.’”).
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B. Defendants Discriminate Against Individuals at CHDC By Depriving Them Objective, Reasonable Assessments Regarding Whether They Are Appropriate for a More Integrated Setting.
CHDC interdisciplinary teams discriminate against individuals at CHDC by failing to provide individuals and their guardians with objective, reasonable assessments of whether they can live in a more integrated setting, in violation of the ADA. 42 U.S.C. §§ 12101-12213; 28 C.F.R. § 35.130(d); Olmstead, 527 U.S. at 602. Instead, CHDC treatment teams routinely conclude that CHDC is the most integrated setting for individuals, except when a guardian proactively – but without the benefit of an independent assessment and recommendation – requests community placement. In this way, individuals and their guardians are deprived of the benefit of an independent judgment about the resident’s appropriateness for a more integrated setting, including the opportunity to meaningfully discuss what services and supports the individual would receive in the community.
CHDC’s failure to provide objective, reasonable assessments harms CHDC residents both individually and systemically. As discussed in Section C below, CHDC deprives individual residents and guardians of the benefit of the treating professionals’ objective, reasonable assessment of whether the resident could handle or benefit from community placement, including the opportunity to meaningfully discuss what services and supports the individual would receive in the community. See also US FOF # # 91-317. This encourages individual guardians to maintain the status quo of continued institutionalization, the setting in which their loved ones already receive services and with which the guardians are most familiar. See Messier, 562 F. Supp. 2d at 333; US FOF ## 303-305.
Additionally, so long as CHDC does not assess individuals to determine what supports and services they would need to be supported in the community, community providers cannot
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develop the capacity, and tailor the services they provide, to meet the needs of those currently institutionalized. Messier, 562 F. Supp. 2d at 339 (“Having failed to learn how many class members could or should be placed in the community, the defendants failed to develop resources for placing class members.”); US FOF ## 89, 186.
The harmful, discriminatory effects of CHDC’s failure to conduct objective, reasonable assessments of residents are reflected by the extreme length of stay for most individuals at CHDC, the increasing number of children being admitted to CHDC, and how few individuals are ever discharged from CHDC. US FOF ## 23-33. In fact, more individuals die at CHDC than are discharged. US FOF # 29. By failing to conduct objective, reasonable assessments, CHDC ensures the perpetuation of a discriminatory and unlawful method of delivering services to individuals with developmental disabilities, where institutionalization is the default option, in violation of the ADA. 28 C.F.R. § 35.130(d) (the ADA mandates that public entities “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities”); Messier, 562 F. Supp. 2d at 337 (“The ADA’s preference for integrated settings is not consistent with a procedure in which remaining [institutionalized] is the default option for residents.”).
1) CHDC Teams Fail To Find That Any Residents Can Be Served in More Integrated Settings Unless a Guardian Affirmatively Requests Or Expresses Interest in Community Placement.
CHDC treatment teams fail to conduct independent clinical assessments of individuals and, instead, routinely conclude that CHDC is the least restrictive setting appropriate for individuals unless a guardian has affirmatively requested or otherwise expressed an interest in community placement. Indeed, the only four individuals that CHDC identified at the time of the
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trial as having their IDTs determine that they were appropriate for a more integrated setting were the same four individuals that CHDC identified as having expressed an interest in community placement. US FOF # 93. In other words, CHDC IDTs did not conclude that a single resident is appropriate for a more integrated setting – except for those whose guardians had already requested community placement. Additionally, longtime CHDC staff testified that they could recall few, if any, instances where an IDT determined that an individual was appropriate for a more integrated setting when a guardian had not explicitly expressed interest in pursuing, or at least affirmatively supported, a more integrated setting. See US FOF ##105-113.
In stark contrast to CHDC’s identification of only 4 of its over 500 residents – less than 1 percent of its total population – as appropriate for a more integrated setting, community service providers from throughout Arkansas confirmed that they can serve the overwhelming majority of the individuals described in the 46 sample IPPs they reviewed. US FOF ## 115-147. This is consistent with the testimony of the United States’ expert, and further evidence that CHDC has abdicated its duty to conduct objective, reasonable assessments of individuals at CHDC in violation of the ADA. Messier, 562 F. Supp. 2d at 337-38; Frederick L., 157 F. Supp. 2d at 540; Long, 2008 WL 4571904, at *2; see US FOF ## 92-99.
2) Treatment Teams at CHDC Do Not Have Sufficient Knowledge or Training About Community Integration to Make Reasonable Recommendations Regarding the Most Integrated Setting Appropriate for Individuals at CHDC.
CHDC interdisciplinary teams are composed of individuals who, by their own admissions, do not have sufficient knowledge or training regarding community services, options, and benefits. Therefore, they are incapable of providing objective, reasonable assessments, in violation of the ADA. CHDC team leaders, program coordinators, psychology staff, and even
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the Superintendent and Director of Social Services, all have a profound lack of understanding about what services are available in the community, what skills an individual needs to be eligible for a community placement, and what benefits there are to community living. For example, the Director of Social Services is the CHDC staff member considered to be most knowledgeable about community placement services, as well as the person responsible for the training and supervision of the staff members who are directly responsible for providing community placement information to parents and families. US FOF ## 63-65. The Director is not familiar with all the services available in the community, was not even aware of the existence of a DDS waiver guide until April 2010 (when a community provider gave her a copy), and is unable to identify independently any benefits to living in settings more integrated than CHDC, other than being able to choose where one lives. US FOF ## 160-162.
Other staff members in leadership positions likewise have a pervasive lack of knowledge about community placement options for individuals residing at CHDC. US FOF ## 163-176. Many have never even visited a community placement setting in Arkansas, yet they are the staff members directly responsible for ensuring that individuals at CHDC are assessed to determine whether they are appropriate for a more integrated setting. US FOF ## 163-176.
3) Individual Program Plans Demonstrate CHDC’s Failure to Conduct Objective, Reasonable Assessments of Whether Individuals Are Appropriate For A More Integrated Setting.
CHDC’s individual program plans demonstrate CHDC’s failure to provide objective, reasonable assessments to individuals at CHDC, as well as CHDC staff’s lack of knowledge and training about community placement. A disturbingly large proportion of CHDC IPPs identify arbitrary barriers to community placement, such as the need to acquire routine daily living skills
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or independent living skills. See, e.g., US FOF ## 189-203. Yet community programs that currently exist in Arkansas provide training in self-care skills and independent living skills. See US FOF ## 115-147, 153-154 and 196-198. Therefore, as the community providers’ testimony confirms, a lack of such skills does not disqualify an individual from eligibility for community placement, and should not be identified in an individual’s plan as the reason he or she should continue to be deprived of the opportunity to live alongside of, and experience life with, nondisabled people. See US FOF ## 115-147, 153-154 and 196-198. Indeed, in some cases, an individual may never gain some basic daily living skills and yet could nevertheless be served in a more integrated setting. See US FOF ## 199-201.
Similarly, many CHDC IPPs contain inappropriate language requiring that individuals advance through the “team hierarchy” at CHDC before they can be considered for placement in a more integrated setting. US FOF ## 95, 143 and 204-214. This concept of requiring that individuals “earn” their way out of an institution is inconsistent with the ADA’s mandate that individuals be served “in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” and results in the needless segregation of individuals with developmental disabilities. 28 C.F.R. § 35.130(d); see also US FOF # 204.
Individuals’ behavioral and medical issues are also often listed in CHDC plans as a barrier to community placement. US FOF ## 215-238. Many plans condition consideration for a more integrated setting on an improvement in the individual’s behavior. US FOF ## 215-228. But for some individuals, maladaptive behaviors are reactions to his or her environment, and may not occur if the person was living in a setting more tailored to his or her individual needs. US FOF ##215-220. This is particularly true for institutionalized children, who often observe and model the maladaptive behaviors that occur around them. US FOF ## 34-37 . In any case,
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community programs that currently exist in Arkansas serve individuals with all sorts of behavioral health issues, including individuals who have aggressive behaviors, need 24-hour direct care, and lack good judgment regarding personal safety, and are not valid bases for depriving individuals of the opportunity to live in a more integrated setting. See, e.g., US FOF ## 128, 130, 135, 137, 140, 142, 144, 146, 224-228.
Likewise, individuals with significant medical issues, for example, individuals who are non-ambulatory, nonverbal, hearing impaired, blind, and who have brittle bone disease, dementia, and seizures, are routinely served in more integrated settings than CHDC, including more integrated settings that currently exist in Arkansas. See, e.g., US FOF ##138, 140, 142, 147, 229-238. The fact that so many IPPs at CHDC identify false barriers to community placement, such as those discussed above, demonstrates CHDC’s failure to conduct reasonable assessments of individuals’ appropriateness for more integrated settings as well as CHDC’s staff members’ inability to do so.
Additionally, IPPs are generic and formulaic, and reflect CHDC’s overall discriminatory bias toward continued institutionalization and the absence of any meaningful efforts to transition individuals to the community. IPPs fail to describe what an individual would actually need to live in a more integrated setting, such as what type of specialized medical care or behavioral health intervention the individual would need, or the type of transportation that would be necessary. US FOF ## 239-266. Transition plans for individuals at CHDC are not individualized. Instead, plans include a “canned” list of general services an individual might need in the community, such as medical care, dental care, and/or 24-hour emergency care -many of which are services to which everyone needs access, and not at all tailored to identifying what a specific individual at CHDC with particular disabilities would need to live successfully in
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a more integrated setting. US FOF ## 245-266. Frequently, IDTs use the same discharge plan for an individual year after year, demonstrating that CHDC sets goals for discharge that individuals cannot meet and, indeed, are not expected to meet. US FOF ## 267-273.
Likewise, long term goals for individuals at CHDC reflect the lack of any expectation or goal that individuals move to more integrated settings. US FOF ## 277 (“By 2015, I will continue to reside at CHDC.”), 279 (“By 2012, I will have the self-help and daily living skills enabling me to function more independently in my present residence.”), and 284 (“I will establish greater independence in daily living and personal hygiene in order to function more effectively in my home at CHDC during the next 5 years.”). Goals such as these reveal Defendants’ discriminatory intent to preserve institutionalization as the “default option” for individuals at CHDC, in violation of the ADA. Messier, 562 F. Supp. 2d at 337; see also Disability Advocates, Inc., 653 F. Supp. 2d at 259 (where State considers an institutional setting to be individuals’ “permanent placements,” a recommendation by State professionals that individuals are appropriate for community placement is not necessary to establish ADA violation).
C. Defendants’ Failure To Provide Objective, Reasonable Assessments Deprives Individuals and Guardians of Information Sufficient To Make Informed Choices About Community Placement.
As a result of CHDC’s failure to provide objective, reasonable assessments of individuals’ appropriateness for a more integrated setting, individuals and guardians are deprived of information that is critical to their ability to make informed decisions regarding whether they wish to pursue community placement, or whether they would decline to accept a “particular accommodation.” 28 C.F.R. pt. 35, app. A. In Messier, the court criticized the state for failing
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to conduct community placement assessments of individuals whose guardians responded to a survey indicating that they wanted their ward to remain in the facility. 562 F. Supp. 2d at 33334. The court explained that “neither the survey nor the cover letter gave much sense of what placement options were available. This might have encouraged respondents to ‘play it safe’ by indicating that they preferred their wards to remain at [the institution], the option with which they were most familiar.” Id. at 333. The court also found that “efforts to educate guardians about community placement are often successful in changing their attitudes,” and that “[a]n opportunity to discuss the possibility of community placement with guardians could make a substantial difference in the number of referrals for placement.” Id. at 333, 338. Ultimately, the court held that, “[b]y concluding from the results of the Family Survey that there is no demand for community placements, the defendants may have prevented guardians and families from making informed choices.” Id. at 338.
Like Messier, Defendants discriminate against individuals at CHDC by depriving them and their guardians of a professional recommendation regarding a particular alternative to continued institutionalization based on an objective, reasonable assessment of that individual, including the opportunity to meaningfully discuss that alternative. CHDC guardians are, at best, notified of the abstract right to pursue community placement, and then asked whether they are “happy” at CHDC or whether they are “interested” in further information about community placements. US FOF ## 305, 307-317. Indeed, CHDC guardians are asked to declare, in writing, a placement preference before the annual IPP review even occurs. US FOF # 304. Neither the IDT nor the individual’s social service worker discusses with guardians what a waiver is in even general terms until after they have already made their choice between institution or waiver services. US FOF # 304.
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Moreover, treatment teams do not assess or discuss in any particularized way a resident’s appropriateness for a more integrated setting unless a guardian explicitly, without the benefit of an objective, reasonable assessment of the individual’s appropriateness for a more integrated setting, expresses an interest in community placement. See US FOF ## 91-114, 305-317. Not coincidentally, the only residents that CHDC had identified at the time of trial as appropriate for a more integrated setting are the same four individuals whose guardians explicitly requested community placement. US FOF # 93.
This is not the scenario envisioned in the ADA’s protection of an individual’s right to decline to accept a “particular accommodation.” 28 C.F.R. pt. 35, app. A. Although guardians of long term institutional residents are often initially hesitant regarding the possibility of a more integrated setting, they react more favorably to community placement once they have been provided with detailed information about community options and an opportunity to speak with community providers and visit community placements. US FOF ## 301-303; see also Messier, 562 F. Supp. 2d at 333 (describing expert testimony that “guardians of institutionalized wards are generally more likely to favor community placement when faced with concrete options for placement than when considering the abstract possibility that their ward could live in a more integrated setting”). By denying CHDC residents and their guardians information that is critical to their ability to make informed decisions about whether CHDC is the most integrated setting appropriate to residents’ needs, Defendants safeguard a discriminatory system where CHDC remains the “default option” for its residents, in violation of the ADA’s integration mandate. See 28 C.F.R. § 35.130(d).
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TABLE OF CONTENTS – PROTECTION FROM HARM IV. FINDINGS OF FACT – PROTECTION FROM HARM........................................... 97
A. Expert Carla Jo Osgood Provided Credible Expert Testimony That CHDC’s Substantial Departure from Generally Accepted Minimum Professional Standards of Protection from Harm Results in Harm to CHDC Residents. ............... 97
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Incident and Quality Management Causes Repeated Harm and Risk of Harm to Residents. ............................................ 98
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm Regarding Abuse and Neglect by Staff Results in Injury and Risk of Injury to CHDC’s Residents. ..................................... 106
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Restraint Use Results in the Excessive and Inappropriate Use of Restraints and Violates the Rights of Residents. ...................................................... 111
E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Staffing and Supervision Results in Harm to CHDC Residents................................................................................................... 114
F. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Staff Training Results in Harm to CHDC Residents. .................................................................................................................. 115
G. CHDC Fails To Protect Resident Rights Adequately. .............................................. 118 V. CONCLUSIONS OF LAW – PROTECTION FROM HARM ................................ 119
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IV. FINDINGS OF FACT – PROTECTION FROM HARM 318. CHDC subjects residents to repeated harm, and unreasonable risk of harm, by failing to provide reasonably safe conditions for residents. Standard protection from harm systems include processes to identify individuals’ risks of harm, respond to incidents of harm when they occur, and provide oversight of incident, injury, and staff abuse/neglect trends at an individual and systemic level, to try to prevent future harm to individuals. CHDC’s systemic failures cause ongoing and repeated harm to residents from: CHDC’s failure to intervene to address and prevent repeated injuries; CHDC’s failure to address preventable self-injurious behaviors; CHDC’s failure to prevent serious injuries such as fractures and lacerations from falls and other events that are preventable with adequate supervision and appropriate risk and incident management procedures; CHDC’s failure to prevent dangerous exposure to bloodborne pathogens from other residents; staff abuse and neglect; and staff’s inappropriate and excessive use of restraints. See FOF ## 319-376. As a result, CHDC’s protection from harm practices substantially depart from generally accepted professional standards and violate residents’ constitutional rights to reasonably safe conditions. Osgood Tr. 44:25-45:3, 46:7-47:11, 184:16186:5.
A. Expert Carla Jo Osgood Provided Credible Expert Testimony That CHDC’s Substantial Departure from Generally Accepted Minimum Professional Standards of Protection from Harm Results in Harm to CHDC Residents.
319. Expert Osgood has approximately 20 years of experience and extensive knowledge regarding systems for protecting individuals with developmental disabilities from harm. Osgood Tr. 37:3-17, 278:11-24. Ms. Osgood’s experience includes developing and implementing protection from harm systems, evaluating between 25 and 30 protection from harm systems in at least 15 states, and drafting policies and providing technical assistance for state agencies that
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provide services to individuals with developmental disabilities. Osgood Tr. 38:13-40:12; US Ex. 1-1. 320. Expert Carla Jo Osgood concluded that CHDC’s protection from harm practices substantially depart from generally accepted minimum professional standards. She based this conclusion on interviews with CHDC administrative and direct care staff and residents; review of thousands of pages of facility documents, including all investigations for an 18-month period, incident and injury reports, administrative reviews of resident injuries, restraint reports, clinical records, and meeting minutes for committees charged with review of resident harm and quality assurance practices; observation of daily incident review meetings in all facility areas; and observation of individuals throughout CHDC for approximately 10 days. Osgood Tr. 51:2154:14. Because facilities must provide reasonably safe conditions for residents with a wide range of needs, Ms. Osgood also reviewed CHDC’s identification of, response to, and preventive action regarding a sample of individuals who had significant and/or recurring injuries, physical assistance needs, or behavioral needs. Osgood Tr. 55:4-19.
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Incident and Quality Management Causes Repeated Harm and Risk of Harm to Residents.
321. Generally accepted professional standards require facilities to identify residents’ risks of harm and take action to prevent such risks, both individually and systemically. Facilities do so by developing and monitoring adequate risk management plans, which incorporate the results of a root cause analysis of any incidents of harm, including the circumstances of how incidents occurred and how they can be prevented in the future. Osgood Tr. 97:9-98:22, 113:19-115:7, 184:16-186:5.
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322. CHDC’s reporting systems and incident management systems substantially depart from these generally accepted professional standards. CHDC’s incident reporting systems are fragmented, and its incident management systems fail to include a root cause analysis to identify and respond to repeated types of injuries and repeated injuries to individuals. Osgood Tr. 101:14-104:25, 105:1-25, 112:13-113:18, 184:16-186:5, 298:1-15; Walsh Tr. 6020:24-6021:8; Miller Tr. 5035:8-5036:16; US Exs. 18, 19, 23-1, 23-2, 24 through 36. Without accurate, consistently reported data, CHDC cannot begin to address the root causes of incidents and take action to try to prevent future similar incidents.1 Osgood Tr. 113:19-114:14. 323. CHDC’s quality management practices substantially depart from generally accepted professional standards because they inappropriately focus on staff and facility-based concerns unrelated to resident rights and protection, such as compliance issues related to maintaining federal funding. Osgood Tr. 46:7-47:11, 116:14-122:15, 184:16-186:5; Miller Tr. 5023:215024:11. 324. CHDC’s quality management practices fail to measure resident outcomes in a number of important areas, such as restraints, abuse and neglect and other serious incidents, resident rights restrictions, and ADA-required community integration. Osgood Tr. 118:25-122:15; Miller Tr. 5027:2-25, 5028:24-5029:1. 325. CHDC purports to address resident injuries through its incident review committees. The Central Incident Review Committee meeting minutes reveal, however, that a substantial proportion of meetings center on discussions of staff injuries, rather than resident injuries. Miller Tr. 5037:9-23. Central Incident Review Committee meeting minutes reflect qualitative

1

Defendants’ consultant’s review of incidents also illustrates how CHDC’s various

data sources yield different data for the same types of incidents, such as for choking. Walsh Tr.

6118:14-6119:20 (showing that one data source reported 1 choking incident and another data

source reported between 11 and 24).

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discussions of individual staff injuries only, not individual resident injuries. Miller Tr. 5037:245038:21. Individual team incident review committee meeting minutes rarely note follow-up action to be taken in response to resident injuries. Miller Tr. 5040:5-9; US Ex. 37. 326. CHDC incident review committees discuss incidents summarily without addressing either the root cause of the incident or how to prevent future incidents. 2 Osgood Tr. 115:8-116:10; US Ex. 37. Accordingly, CHDC does not meaningfully respond to incidents to stop recurring harm to CHDC residents. Osgood 114:15-115:7; US Exs. 18, 19, 23-1, 23-2, 24 through 36 (and subparts), 68-1, 68-2, 68-3, 79, 366, 367, 368, 369, 370, 371, 373, 374, 375, 377, 378, 379, 380, 381, 382, 383, 462, 564-2, 564-8, 564-12, 564-14, 577-9. 327. Continued institutionalization of CHDC residents exacerbates harm caused by “institutional behaviors,” which result when residents observe and model the other maladaptive behaviors that occur around them. Matson Tr. 1178:3-1179:18. A crowded institutional environment such as CHDC exacerbates violent and maladaptive behaviors, resulting in ongoing harm to CHDC residents. Richardson Tr. 602:16-22; Price Tr. 1682:6-15. Compounding this problem, CHDC staff do not promptly re-evaluate and update the behavioral plans of individuals for whom plans have been shown ineffective. Matson Tr. 1084:12-1085:25; Manikam Tr. 3142:8-3145:3 (detailing how delays result in non-alignment of assessments and treatment); see, e.g., US Exs. 564-1, 564-26, 567-1, 578-31, 580-1, 701-1 through 701-6. 328. As a result of systemic deficiencies, CHDC residents suffer ongoing, repeated harm and repeated risk of harm. CHDC’s own documents show that CHDC has failed and continues to fail

2

Incident review committee meetings include only cursory reviews of incidents, as

incident review committees typically run through an average of 20 to 30 incidents per hour

meeting, spending only 1.5 to 3 minutes discussing each incident. Clendenin Tr. 1571:21-

1574:9; see also Murphy Tr. 460:2-8 (incident review committee meetings typically last roughly

45 minutes).

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to protect residents from repeated harm caused by: staff abuse/neglect (US Exs. 44, 45, 46, 48 through 52, 54 through 59, 61); staff failure to implement appropriate behavior plans to address injuries from other residents (US Exs. 24, 24-1 through 24-39, 25, 25-1 through 25-125, 26, 26-1 through 26-52, 27, 27-1 through 27-55, 28, 28-1 through 28-31, 29, 29-1 through 29-19, 32, 32-1 through 32-16, 35, 35-1 through 35-35, 36, 36-1 through 36-19); dangerous exposure to bloodborne pathogens from other residents (US Exs. 23-1, 23-2, 24, 24-1 through 24-39, 26, 261 through 26-52, 27, 27-1 through 27-55, 28, 28-1 through 28-31, 29, 29-1 through 29-19, 35, 35-1 through 35-35, 36, 36-1 through 36-19); staff failure to address preventable self-harm (US Exs. 29, 29-1 through 29-19, 30, 30-1 through 30-29); staff’s inappropriate and excessive use of restraints (US Exs. 27, 27-1 through 27-55, 29, 29-1 through 29-19, 39-1 through 39-8, 49, 2010, 2016); and serious injuries such as fractures and lacerations from falls and other events that can be prevented by adequate supervision and appropriate risk and incident management procedures. US Exs. 24, 24-1 through 24-39, 25, 25-1 through 25-125, 26, 26-1 through 26-52, 29, 29-1 through 29-19.3 329. For example, CHDC documents reveal that resident ME lived at CHDC for 42 years before dying there at age 48 from respiratory failure due to aspiration pneumonia. See Price Tr. 6883:21-6884:5. CHDC’s own documents show that ME suffered numerous injuries, assaults, and staff neglect over a representative 2-year time period of June 2007 to August 2009. CHDC failed to intervene with adequate treatment and behavior plan implementation for residents who repeatedly hit, bit, pushed, and scratched ME at least 20 times. CHDC did not adequately

3

At trial, in response to Defendants’ objection to the United States’ summary

Exhibits 24 through 36, the Court determined that the United States could use these summary

exhibits in these post-trial filings, so that Defendants could have additional time to review the

summaries and compare them to the underlying documents (the subparts of United States

Exhibits 24 through 36), which the Court admitted at trial. Osgood Tr. 190:8-197:3.

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supervise ME, and eventually discovered him engaged in dangerous activities on at least ten occasions, including one time with his feeding tube removed and seven times ingesting nonnutritive items such as feces, paper, and a book. CHDC’s substandard supervision was particularly dangerous for ME because of his medical orders not to receive anything by mouth because he could aspirate and develop pneumonia (his cause of his death). As indicated by CHDC neurological checks and other injury documentation, ME also suffered numerous injuries from known and unknown causes, including two bruises in his genital area and at least a dozen known or suspected head injuries from falls or other incidents, including at least two that resulted in head lacerations. US Exs. 24, 24-1 through 24-39, 553-1. 330. Resident TN has resided at CHDC for more than 20 years, since he was a teenager. Resident TN has been the victim of at least seven substantiated maltreatment investigations, including incidents of physical and verbal abuse by staff and four incidents involving inadequate staff supervision. CHDC documents show that, over the same representative 2-year period, CHDC resident TN suffered at least 80 known or suspected head injuries. These reported head injuries may not represent all his injuries, as staff have failed to supervise TN at various times despite his being designated for enhanced supervision. At different times, staff have found him buckled naked into a recliner with bruises to his genital area and trunk and wandering alone on the grounds sidewalk when no one knew of his whereabouts while he was supposed to be under enhanced supervision. US Exs. 25, 25-1 through 25-125, 553-1. 331. Resident NM has been at CHDC for more than 40 years. Between July 2007 and July 2009, CHDC staff failed to intervene with appropriate treatment and behavioral interventions for residents who hit, scratched, and bit NM’s face and body nearly 20 times. NM has been unnecessarily and repeatedly exposed to hepatitis B, a contagious bloodborne disease, by
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CHDC’s failure to address biting by a resident known by staff to have hepatitis B. Instead of taking action to prevent this ongoing harm, CHDC staff merely noted that the individual had a plan to address her biting, ignoring that the plan was obviously not working. NM also has suffered injuries, including possible head injuries, from falling at least 17 times. In September 2007, documenting 1 of the earliest falls during this 2-year period, CHDC staff noted that NM had recent falls that weekend and needed hands-on assistance at all times while walking. Nevertheless, NM fell at least 16 times after that acknowledgement of her needs and risk of injury. US Exs. 26, 26-1 through 26-52, 533-1. 332. Resident SM was admitted to CHDC at age 6 and has been there for more than 30 years. CHDC documentation shows that, between June 2007 and October 2009, CHDC staff failed to intervene with appropriate treatment and behavioral interventions for 2 residents who bit, hit, or scratched SM at least 18 times. CHDC continuously noted that “staff followed [the resident’s] program and will continue to do so,” but failed to take any action to revise the clearly ineffective plan. US Exs. 32, 32-1 through 32-16, 533-1. 333. CHDC also has subjected children to repeated harm that CHDC has failed to address and prevent. For example, youth ZS has been stomped on while restrained on a papoose board (causing a footprint-shaped abrasion on his face) and has suffered bruising and scrapes from staff strapping ZS onto a papoose board, contrary to Defendants’ claim that individuals have not been injured in restraints. US Exs. 27, 27-1 through 27-55. According to CHDC documentation, from October 2007 until May 2009, CHDC staff failed to intervene with appropriate treatment and behavioral interventions for youth who bit, hit, scratched, pushed, or pinched youth ZS no less than 35 times. Instead of addressing these repeated harms, staff merely noted that those
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individuals had behavior plans and staff would continue to follow them, despite that these plans clearly were not working. US Exs. 27, 27-1 through 27-55. 334. CHDC has also allowed another CHDC youth, RD, to suffer repeated injuries from other CHDC residents. CHDC staff took no action to rectify the repeated harm to RD, other than to continue to follow those individuals’ ineffective behavior plans. Similar to youth ZS, CHDC allowed other residents to bite, push, or hit youth RD at least 20 times, per CHDC documentation, from June 2007 to August 2009. Youth RD also has suffered possible head injuries at least eight times, including two separate head lacerations requiring staples to close the wounds, as indicated by CHDC neurological checks and other CHDC documentation. US Exs. 28, 28-1 through 28-31. 335. Similarly, CHDC staff failed to intervene with appropriate treatment and behavioral interventions for other youth who kicked, slapped, hit, scratched, pinched, pushed or bit youth HB at least 20 times from June 2007 to April 2009, according to CHDC documentation. Again, CHDC staff merely noted that they were continuing to follow the individuals’ ineffective behavior plans. CHDC’s use of mechanical restraints has also injured youth HB. After staff put him in a mitten jacket, youth HB fell off a couch and, unable to break his fall, suffered a possible head injury and bruised eye. CHDC has failed to prevent other head injuries to HB. CHDC’s inability to address HB’s ongoing headbutting behavior has resulted in possible head injuries at least a dozen times. US Exs. 29, 29-1 through 29-19. 336. CHDC has similarly failed to intervene to implement appropriate resident behavior plans to prevent repeated injuries to youth DK, as indicated by CHDC documentation from June 2007 to September 2009. CHDC’s failure to implement appropriate behavioral interventions resulted in other youths biting, hitting, slapping, kicking, or scratching DK at least 40 times. DK suffered
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possible head injuries from CHDC’s repeated failures to intervene. Again, CHDC’s only apparent response to the continued injuries to DK by the same individuals was to keep following those individuals’ ineffective behavior plans. US Exs. 35, 35-1 through 35-35. 337. Similarly, CHDC documentation shows CHDC has failed to implement appropriate behavioral interventions to address injuries caused by residents repeatedly biting or hitting CHDC youth DG at least 20 times between August 2007 and March 2009. CHDC merely continued to note that the residents who repeatedly harmed DG had behavioral “strategies” (not even a full behavior plan), which staff would continue to follow, despite that these “strategies” clearly were failing. US Exs. 36, 36-1 through 36-19. 338. CHDC uses mechanical restraints improperly in lieu of adequate assessment and behavioral treatment. Manikam Tr. 3162:21-3163:3. For example, CHDC staff have not developed or implemented appropriate behavioral interventions to address individuals’ repeated self-injurious behaviors (“SIB”). Instead, staff have caused more injuries to these individuals by using mechanical restraints instead of effective preventive measures to address individuals’ repeated SIBs. CHDC documentation shows that, from August 2007 to July 2009, CHDC youth TC suffered bruised and swollen eyes and numerous bruises and abrasions to his body from SIB. CHDC’s use of mechanical restraints to address TC’s behaviors have caused additional injuries to TC - such as bruises, cuts, and scrapes - and have not addressed the underlying causes of, or prevented, TC’s ongoing SIB. US Exs. 29, 29-1 through 29-19. 339. Similarly, pursuant to CHDC documentation from June 2007 to March 2009, CHDC resident DC has repeatedly slapped and hit himself in the face, resulting in possible head injuries more than 10 times. Instead of developing a plan to address the underlying causes of this
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behavior, CHDC responded inappropriately by strapping him on a papoose board, causing DC additional harm. US Exs. 30, 30-1 through 30-44. 340. Compounding the ongoing harm and risk of harm from repeated injuries, CHDC fails to investigate possible sexual abuse, even when a resident suffers suspicious injuries. For example, bruising to a resident’s genital area did not prompt CHDC to investigate whether physical or sexual abuse caused the injury, even though the resident resides on a unit that houses residents with histories of aggression and sexually inappropriate behaviors. R. Brewer Tr. 6750:22-25, 6752:1-22. CHDC also failed to investigate other suspicious injuries for possible sexual abuse, including a scratch to a resident’s buttock, a bruise to a resident’s inner thigh, and a bite mark on another resident’s inner thigh. Miller Tr. 5029:18-5030:2. For the resident whose inner thigh was bitten, CHDC concluded the injury investigation by simply stating that the resident tended to untruthfully blame others. Miller Tr. 5030:3-8. 341. CHDC has not conducted any sexual abuse investigations in the last five years and has never conducted a sexual abuse investigation regarding a non-verbal resident, according to longtime CHDC employee and quality assurance director Gail Miller. G. Miller Tr. 5029:14-21.
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm Regarding Abuse and Neglect by Staff Results in Injury and Risk of Injury to CHDC’s Residents.
342. CHDC fails to take systemic action to address, or attempt to prevent the recurrence of, staff’s ongoing and pervasive abuse and neglect of children and adults, sometimes at the hands of repeat staff offenders. Osgood Tr. 153:18-156:18, 171:24-172:4, 184:16-186:5, 295:16-297:1; US Exs. 43 through 63.
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343. Defendants’ own consultant, Dr. Kevin Walsh, found that CHDC’s abuse and neglect rate of .054 per person per year greatly exceeded the rates of comparable facilities. Walsh Tr. 6121:11-6122:11. 344. CHDC ineffectively addresses repeated CHDC staff abuse and neglect by merely terminating the individual staff found culpable for resident abuse and neglect, without conducting an analysis of frequent alleged perpetrators, frequent resident victims, types of incidents, where incidents are occurring, who reports incidents, and the shifts during which abuse occurs. Osgood Tr. 174:13-175:3. Instead of this analysis required by generally accepted professional standards, CHDC relies on administrative reviews and incident reviews that document incidents, but do nothing to determine the root cause of incidents and prevent future incidents. Osgood Tr. 152:12-21 (incident review committee and administrative review each indicate that the other will review the incident, resulting in follow-up action being taken by neither); Weaver Tr. 311:9-326:2 (illustrating such cyclical paper processes as to resident ME), 326:13-328:24 (illustrating cyclical paper processes as to resident ZS); Murphy Tr. 437:23-442:3 (illustrating cyclical paper processes as to resident HB), 442:25-448:25 (illustrating cyclical paper processes as to resident BB), 448:12-450:12 (illustrating cyclical paper processes as to resident CA); see also Osgood 174:13-175:3 (CHDC terminating individual staff is insufficient to address repeated abuse and neglect). 345. CHDC staff’s ongoing serious acts of abuse and neglect have caused serious harm, and risk of harm, to CHDC adults and children. Osgood Tr. 50:19-51:20; US Exs. 43 through 63, 2713, 52. On multiple occasions, CHDC staff continued to work with CHDC residents even though they had abused or neglected CHDC residents, or had previously been investigated for abuse or neglect. US Exs. 45 (staff previously accused of physical abuse of resident and
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continued to provide direct care to CHDC residents), 47 (staff disciplined on 4 prior occasions and continued to work with CHDC residents), 48 (staff repeatedly disciplined, accused of physical and verbal abuse of resident, and continued to work with CHDC residents), 50 (staff terminated in 2005 for physical abuse of CHDC resident but subsequently returned to duty). 346. As to children, CHDC staff have forced a resident to assault another child while staff restrained the child victim, causing bruises to the child’s hands, forearms, legs, back, and chest. Osgood Tr. 158:1-6, 159:3-19; US Ex. 43. Staff have severely beaten several CHDC youth. One staff was fired, later reinstated, and then found to have banged one youth’s head against a door, causing a swelled bloody nose. Osgood Tr. 159:24-162:9; US Ex. 44. Another staff sat on and choked a youth resident, causing serious harm and serious risk of harm from asphyxiation. Osgood Tr. 162:10-25; US Ex. 45. This staff previously had been investigated for grabbing a resident by the neck and forcibly sitting him down, but the investigation was not substantiated and the staff member returned to work. Osgood Tr. 162:10-25; US Ex. 45. A different staff person scratched a child, twisted his arm, and tried to force the child to go to another residence. Osgood Tr. 163:5-15; US Ex. 46. 347. Staff gave another youth footprint-shaped purple abrasions across his face, after the staff immobilized him in a papoose board and stomped on the youth’s face. Osgood Tr. 163:18166:19; US Exs. 27-13, 47, 48. The youth had previously reported that the same staff member hit him and called him names every day. Osgood Tr. 164:1-13. This staff member had two prior abuse allegations – one for grabbing a resident by the collar, dragging him outside, and forcing him into a chair (US Ex. 55), and another for grabbing a resident by the neck, putting him in a headlock, and lifting and dragging the resident (US Ex. 62). Osgood Tr. 165:6-13, 167:16168:23. This staff member had received multiple forms of discipline for other on-the-job
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conduct as well. Osgood Tr. 164:14-165:6. Even after the staff member stomped on the youth strapped on a papoose board, the youth’s safety plan still permitted staff to restrain him in a papoose board, despite that generally accepted professional standards require evaluation of the possible effects of restraint use for individuals who have been abused while restrained. Osgood Tr. 166:20-167:15. CHDC did not even ensure that this youth’s program coordinator became aware of this significant incident when she received the youth on her caseload. Weaver Tr. 339:1-22. 348. CHDC staff also have abused and injured adult residents. One CHDC resident was beaten repeatedly with a broken coat hanger and suffered numerous whelps across her back, arms, shoulders, chest, and buttocks. Osgood Tr. 170:5-171:11; US Ex. 50. The staff member who severely abused this CHDC resident previously had been terminated for abuse but was permitted to return to work after she was able to pass a polygraph test. Osgood Tr. 171:12-23. 349. Another CHDC staff member abused a resident using a belt buckle as a weapon. Osgood Tr. 172:13-23; US Ex. 2015. The staff’s abuse was revealed when the resident was discovered to have a bruise matching the shape of a staff member’s belt buckle. Osgood Tr. 172:13-23; US Ex. 2015. This resident had been the victim of staff abuse or neglect on multiple prior occasions as well, including at least two substantiated instances of physical abuse and at least three substantiated incidents of neglect, one of which involved staff members who strapped the resident naked into a recliner and left him unattended, chewing on a blanket. Osgood Tr. 172:24-174:12. 350. Other incidents in which CHDC residents have suffered physical abuse include an instance where a staff person hit a resident in the chest with a keyboard, and told another employee, “you did not see this.” Osgood Tr. 175:8-5; US Ex. 51. Another CHDC staff member
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punched a resident who was in a wheelchair. Osgood Tr. 176:24-177:14; US Ex. 54. Another staff member became involved in an altercation with a CHDC resident and struck the resident repeatedly in the head. Osgood Tr. 178:24-180:5; US Ex. 57. Other staff members: hit a CHDC resident as the staff took a jacket away from him (Osgood Tr. 176:9-21; US Ex. 52); hit a CHDC resident in the face with a magazine (Osgood Tr. 177:17-178:4; US Ex. 56); pushed a resident down onto the floor in a living unit day room (Osgood Tr. 181:9-25; US Ex. 59); stepped on a resident’s hand when the resident was agitated (Osgood Tr. 183:2-22; US Ex. 61); and grabbed a resident by the neck and shoved her into her room, taking the resident’s blanket away “to make her behave.” Osgood Tr. 180:9-181:5; US Ex. 58. 351. In addition, CHDC staff have verbally abused or threatened CHDC adult and children residents. Osgood Tr. 178:7-20; US Ex. 53 (CHDC staff threatening to hit CHDC resident if he had hit another resident and cursing at the same resident after he soiled himself); Osgood Tr. 182:4-17; US Ex. 60 (CHDC investigation confirming discourteous conduct for staff member who verbally abused CHDC resident). 352. CHDC also perpetuates an environment in which staff do not feel safe reporting alleged abuse and neglect. Discouraging staff from reporting alleged acts of abuse or neglect, CHDC disciplines and even terminates staff who report late, even if the delay in reporting is due to intimidation by the alleged perpetrator of the abuse. Osgood Tr. 156:19-157:18. In addition, a large portion of staff who report abuse and neglect are recently hired, indicating that CHDC fosters a culture of silence into which staff are eventually inducted. Osgood Tr. 156:19-157:18, 158:1-21, 168:10-18; US Ex. 43 (abuse reporting staff did not report immediately because he did not trust the shift coordinator’s relationship with the alleged perpetrator, yet was terminated for late reporting); Osgood Tr. 181:8-23; US Ex. 59 (reporting staff had one month on the job); US
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Ex. 60 (reporting employee had three months on the job); Osgood Tr. 183:1-19; US Ex. 61 (reporting staff had two months on the job); Osgood Tr. 168:10-23; US Ex. 62 (alleged perpetrator not disciplined for unsubstantiated allegations but reporting staff member received a written warning for late reporting). Consequently, staff likely do not consistently report alleged acts of abuse or neglect, and CHDC’s failure to investigate and address alleged acts of abuse and neglect of CHDC residents continues to expose residents to harm.
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Restraint Use Results in the Excessive and Inappropriate Use of Restraints and Violates the Rights of Residents.
353. CHDC uses outdated and highly restrictive forms of mechanical restraints on both adults and children. These mechanical restraints include papoose boards, which other states have not used for a number of years, and restraint chairs, which most facilities have eliminated in the last ten years. Osgood Tr. 47:12-48:7, 145:2-147:2, 277:20-278:4, 293:2-294:15. Other states have banned or are considering banning the use of all mechanical restraints on children. Osgood Tr. 276:4-12. 354. Generally accepted professional standards require restraint reviews, which include an inquiry into: the precipitating factors that led to the restraint (including any de-escalation that was conducted before the restraint), how the restraint was employed, whether the restraint was applied in accordance with policy, whether the individual was monitored during the restraint to prevent injury, whether there are any significant restraint trends, and what actions can be taken to prevent future restraints. Osgood Tr. 48:19-49:11, 130:19-131:9. 355. CHDC fails to ensure that staff restrain residents only in emergency situations necessary to prevent harm to the resident or others and only for the length of time necessary for the emergency to subside. CHDC also does not conduct a documented review of each restraint to
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examine these factors or to take steps to prevent future incidents of inappropriate restraints. Osgood Tr. 48:8-49:11, 127:14-130:6, 184:16-186:5; Miller Tr. 5027:6-12; US Ex. 39-1 through 39-8. Moreover, CHDC’s restraint data is underinclusive because CHDC does not record the use of restrictive garments as restraints. Osgood Tr. 130:7-18. 356. As a result, CHDC’s restraint use substantially departs from generally accepted standards requiring that staff use restraints only in emergency situations necessary to prevent harm to the resident or others and only for the length of time necessary for the emergency to subside. Osgood Tr. 48:8-49:11. 357. For example, staff have improperly restrained or threatened to restrain CHDC residents for punitive reasons. In one incident, CHDC staff retaliated against a resident by pinning down the resident, telling her that she was “going to the board,” and then restraining her on a papoose board. Osgood Tr. 134:18-136:10; US Ex. 2016. Another time, a CHDC staff put a resident in a chokehold, dragged her across the floor, physically restrained her, and then strapped her on a papoose board, in retaliation for the resident biting the staff. Although the staff abuse was investigated, CHDC did not investigate the improper use of restraint. Osgood Tr. 142:24144:13; US Ex. 49. In yet another incident, a nurse yelled at a resident that if the resident did not take her medication, the resident would be put on a papoose board. Osgood Tr. 136:14-25, 141:22-142:2; US Ex. 2010. A CHDC resident also told Ms. Osgood that, when the resident acted up, staff strapped her on the papoose board, which caused injuries to her wrists. Osgood Tr. 144:15-145:1. 358. CHDC residents are inappropriately restrained so often that they have been accustomed to it. A CHDC resident confirmed with one of Defendants’ consultants that she is restrained for
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punishment, but that it is “not a big deal” – a statement that even Defendants’ consultant finds “troubling.” Gale Tr. 5733:17-5734:4. 359. CHDC restraint plans reflect inappropriate criteria for release. E.g., US Ex. 40 (safety plan indicating that CHDC resident should be “apologetic” before being released from restraints); Osgood Tr. 131:10-133:11 (safety plan requiring that individual be apologetic before being released from restraints demonstrates punitive restraint use); Gale Tr. 5734:20-24 (CHDC resident stated that she must agree not to engage in undesired behavior again before being released from restraints). 360. Because CHDC does not track injuries in restraints, CHDC is unaware that residents have suffered such restraint injuries, indicating that restraints may be harming more than protecting CHDC residents. Osgood Tr. 84:7-22, 148:9-153:15, 268:8-20 (CHDC resident placed on papoose board while x-rays of her hip were pending, risking further injury of the individual’s hip); US Exs. 8 (injuries in restraints included abrasions and bruising), 27-13 (youth ZS stomped on in papoose board, suffering footprint-shaped abrasion to face), 39-1 (in response to discovery request, CHDC indicated there had been no injuries resulting from restraint use), 39-2 (resident received pain medication after being placed on papoose board), 39-3 (resident was put on papoose board and hurt his foot), 39-4 (blister from seat belt restraint), 39-5 (red marks from arm splint restraints), 39-6 (scratches from restraint), 39-7 (abrasion from papoose board strap), 39-8 (bruise to hip from papoose board).
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E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Staffing and Supervision Results in Harm to CHDC Residents.
361. CHDC has insufficient staff to adequately supervise residents, to provide adequate care and supports to its residents, and to protect residents from ongoing harm and risk of harm. Osgood Tr. 76:14-76:25, 283:14-284:12. 362. For example, CHDC staff’s inadequate supervision caused the death of a CHDC resident, known to be at risk of choking because staff had observed her filling her mouth too full, eating fast, and swallowing without chewing on various occasions. US Ex. 6-3 at CON-US-0009499. CHDC staff were supposed to observe her during mealtime and redirect her to avoid these behaviors. Left unsupervised one evening, resident AR choked on bologna in a housing unit kitchen. Osgood Tr. 77:1-78:13; US Exs. 6-1, 6-2 & 6-3. Following AR’s death, CHDC did not take corrective action – until the state agency that monitors CHDC, the Arkansas Office of LongTerm Care (“OLTC”), conducted an investigation. Osgood Tr. 78:2-7. 363. CHDC also has failed to protect residents who it knew were at risk of pica (ingesting non-nutritive items), as shown by incidents in which residents tore out catheters and feeding tubes, or ingested markers, crayons, books, cups, pieces of Attends, a deodorant spray nozzle, and feces. Osgood Tr. 79:3-81:4, 83:8-24, 89:23-90:18, 91:16-24, 92:5-93:4; US Exs. 7-1, 7-2, 7-3, 8, 13, 15, 16. 364. CHDC also places residents at risk of serious harm by not following through on orders for increased supervision. For example, CHDC staff has left individuals on suicide watch unattended and individuals assigned visual supervision unattended in a parking lot. Another resident suffered injuries after CHDC staff left the resident unattended and the resident jumped off a desk. Osgood Tr. 85:4-89:16, 90:25-91:10; US Exs. 9, 10, 11, 12-1, 12-2, 14. As the
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examples illustrate, CHDC’s staffing and supervision substantially departs from generally accepted professional standards and places CHDC residents at continued risk of harm. 365. On-site observations also revealed inadequate staff supervision. Ms. Osgood observed several residents at risk of harm from inadequate supervision during her site visits at CHDC. Osgood Tr. 94:16-97:8. For example, one man had wrapped a plastic apparatus around his neck (characterized by CHDC as “chewelry”), another woman whose one eye had been enucleated was seen poking at her remaining eye, and another woman had a bleeding laceration that CHDC staff appeared not to have detected. Osgood Tr. 95:13-96:5. Other individuals were sitting idly, not apparently engaged in any activities or active treatment. This is significant because lack of meaningful activity is associated with increased resident injuries. Osgood Tr. 95:2-12, 96:1597:7. 366. CHDC’s superintendent Price conceded that direct care staffing is a primary issue for CHDC. Mr. Price recalled times that CHDC has had to count secretaries or teachers as direct care staff in order to meet minimum CMS staffing ratio requirements. Price Tr. 1686:7-25. When the United States’ experts were on-site, CHDC artificially improved staffing ratios by refusing to approve any staff leave during those days. Price Tr. 1686:16-22.
F. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Protection from Harm in Staff Training Results in Harm to CHDC Residents.
367. CHDC has inadequate systems and procedures to protect clients and staff from harm. CHDC’s deficiencies include an absence of comprehensive policies and procedures and insufficient competency-based training to guide staff in providing adequate care and supervision to residents. Osgood Tr. 45:15-46:4, 57:25-58:15, 184:16-186:5. As a result, staff are not
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familiar with the supports and services that residents in their care need. This harms individuals and places them at risk of harm. Osgood Tr. 45:15-46:4, 57:25-58:15, 184:16-186:5. 368. Ms. Osgood found that CHDC’s systemic deficiencies resulted in harm and risk of harm to residents. Defendants’ consultant, Dr. Kevin Walsh, conducted no analysis of whether harmful outcomes to CHDC residents showed systemic deficiencies. Walsh Tr. 6118:2-13. Nor did Dr. Walsh evaluate a single individual to see whether any individual suffered repeated injuries or whether individual rates of injuries improved over time. Walsh Tr. 6127:15-18. 369. As recently as Summer 2010, CMS found that CHDC placed individuals in immediate jeopardy. Specifically, CMS found that CHDC violated the “client protection” condition of participation, an extremely rare and serious adverse finding.4 Osgood Tr. 65:20-68:14, 280:9-19; US Ex. 4. This finding was precipitated by an incident in which CHDC staff left a resident unattended in a locked wheelchair in extreme heat for nearly four hours, soiled and suffering from heat stroke. Osgood Tr. 69:1-70:5; US Ex. 4. The CMS survey, conducted by State OLTC staff, also revealed that CHDC was not timely completing investigative reports in accordance with CMS regulations. Osgood Tr. 70:6-70:15. 370. CHDC’s inadequate systems and procedures also led to the sexual assault of a CHDC resident. CHDC staff permitted a non-CHDC resident to stay overnight, unsupervised, with the CHDC resident. During this visit, the individual sexually assaulted the CHDC resident. Osgood Tr. 58:16-61:5; US Ex. 2. CHDC had no policy or procedure to instruct staff how to supervise residents during overnight visits, including how to make room assignments or whether and how to conduct bed checks. Osgood Tr. 59:13-19. In addition, this CHDC resident has a hearing impairment and needed to report the sexual assault to a peer because there apparently was no

4

See 42 C.F.R. § 4893.

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staff versant in sign language to receive his report of sexual abuse. Osgood Tr. 59:18-24. Even after this incident, CHDC failed to implement comprehensive procedures for overnight trips. Osgood Tr. 60:6-17. 371. CHDC’s inadequate systems and procedures also caused CHDC staff to leave a nonverbal child with autism and seizure disorder alone in a housing unit overnight with no supervision. Osgood Tr. 61:16-63:20; US Ex. 3. If this child had suffered a seizure overnight, he would have had no one to help him. CHDC staff left the child after moving all other residents out of a housing unit due to a staffing shortage. Although this was not the only instance in which CHDC staff had to move all individuals out of a housing unit due to a staffing shortage, CHDC still had no procedural guidelines for moving individuals out of their residence overnight. Osgood Tr. 62:20-63:20. Such procedural guidelines should include how to ensure that all individuals are transported to the correct location and what documentation must accompany the individuals. Osgood Tr. 63:2-63:20. Even after creating a protocol following this incident, CHDC failed to adequately train staff on procedures for overnight moves: Ms. Osgood interviewed a number of staff, and they were unable to articulate the protocol. Osgood Tr. 63:25-64:16. 372. CHDC staff training substantially departs from generally accepted professional standards because it is not sufficiently competency-based, i.e., it does not measure whether staff understand what they are supposed to perform and how they are supposed to perform it. Osgood Tr. 71:14-73:16. As a result, staff do not have the tools they need to provide adequate care and supervision to individual residents and are not familiar with the supports and services that residents in their care need. Osgood Tr. 49:12-50:18.
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373. In particular, CHDC relies on “quick reference guides” (“QRGs”) as a replacement for adequate staff education. This is especially problematic for “float staff,” who often are assigned to the most high-risk individuals at CHDC without familiarity or training regarding the needs of individuals in their care. Osgood Tr. 49:23-50:18, 73:20-75:4. For example, a CHDC resident was injured from a fall after staff relied on a QRG that did not disclose protective equipment required for the resident. Osgood Tr. 75:5-76:2; US Ex. 5. In other investigations as well, CHDC’s reliance on QRGs resulted in harm to individuals because staff were found not to have read those guides. Osgood Tr. 76:3-8. 374. CHDC also relies on a “read and sign” method of training staff on new or revised policies and procedures. See Price Tr. 6895:12-18. This substandard method fails to ensure that staff gain the competencies needed to implement the policies and procedures. Osgood Tr. 64:17-65:4.
G. CHDC Fails To Protect Resident Rights Adequately. 375. CHDC does not ensure protection of resident rights. CHDC’s resident rights practices fail to address certain types of rights restrictions, including the placement of cameras in resident housing units. Specifically, CHDC placed cameras in housing units without obtaining prior consent from the facility human rights committee, individuals, or their parents/guardians. Osgood Tr. 123:9-124:16; Price Tr. 6906:5-13. Only later did CHDC inform parents and guardians of the cameras. Osgood Tr. 124:5-16. 376. CHDC fails to ensure that consent for treatment and services is informed and voluntary. Instead, CHDC relies on an informed consent policy that permits CHDC to discharge residents if they or their parent or guardian will not consent to any proposed restriction of resident rights that requires informed written consent, i.e., administration of psychotropic medications. Osgood Tr. 124:17-127:11; US Ex. 38.
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V. CONCLUSIONS OF LAW – PROTECTION FROM HARM

Defendants systematic violation of CHDC residents’ constitutional right to protection

from harm causes harm to residents from staff abuse and neglect, inappropriate and excessive

use of restraints, and repeated serious injuries such as lacerations, fractures, and harm from other

individuals. The Fourteenth Amendment requires that CHDC provide residents reasonably safe

conditions of confinement and protection from unreasonable risks of harm. See Youngberg v.

Romeo, 457 U.S. 307, 315-16 (1982) (requiring states to take the necessary steps to ensure that

facilities provide residents reasonably safe conditions of confinement and reasonable protection

from harm); Andrews v. Neer, 253 F.3d 1052, 1062 n.8 (8th Cir. 2001) (noting that Youngberg

and its Eighth Circuit progeny require “vulnerable patients [ ] to be protected, through before-

the-fact measures, from themselves, other patients, or the deliberate harmful actions of the

institution’s staff members”); see also Helling v. McKinney, 509 U.S. 25, 34-35 (1993)

(affirming that the Eighth Amendment requires protection from unreasonable risk of future

harm). In violation of this constitutional requirement, Defendants harm residents with a

protection from harm system that substantially departs from generally accepted minimal

professional standards.

CHDC’s substandard systems and procedures to protect residents from harm, including

policies and procedures to guide staff in providing care and supervision to residents and adequate competency-based staff training,5 fail to provide CHDC residents with constitutionally

reasonably safe conditions. Youngberg, 457 U.S. at 315-16. CHDC violates residents’

constitutional right to reasonably safe conditions by failing to provide sufficient staff to

5

Federal Medicaid regulations, and particularly 42 C.F.R. § 483.430(e), require

that staff training be competency-based. See 42 C.F.R. § 483.430(e) (“Staff must be able to

demonstrate the skills and techniques necessary to implement the individual program plans for

each client for whom they are responsible.”).

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adequately supervise residents, to provide adequate care and supports to its residents, and to protect residents from ongoing harm and risk of harm. Id.
CHDC also violates residents’ constitutional right to reasonably safe conditions by failing to prevent risk of serious harm through development and monitoring of adequate risk management plans and by failing to identify and respond to repeated types of injuries and repeated injuries to individuals. Youngberg, 457 U.S. at 315-16; Helling, 509 U.S. at 34-35. Rather than focusing on improving the health and safety of residents, CHDC’s quality management practices inappropriately target the facility’s efforts to try to maintain compliance with federal funding and other regulations, as well as other facility-based concerns (such as employee worker’s compensation issues). Failing to take action to avoid harm and ongoing risk of harm to residents following staff abuse and neglect, inappropriate and excessive use of restraints, and repeated serious injuries such as lacerations, fractures, harm from other individuals, and exposures to bloodborne pathogens, exhibits CHDC’s lack of professional judgment and, as such, constitutes a substantial departure from minimum professional standards. Youngberg, 457 U.S. at 323.
CHDC violates residents’ rights to reasonable safety by utilizing outdated and highly restrictive forms of mechanical restraints on both adults and children, and by failing to ensure that such restrictive physical and mechanical restraints of residents are applied only in emergency situations necessary to prevent harm to the resident or others and only for the length of time necessary for the emergency to subside. Id. at 316-18; Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245 (2d Cir. 1984) (holding that patients of mental health institutions have a right to freedom from undue bodily restraint); Thomas S. v. Flaherty, 699 F. Supp. 1178, 1189 (W.D.N.C. 1988) (“It is a substantial departure from professional
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standards to rely routinely on seclusion and restraint rather than systematic behavior techniques such as social reinforcement to control aggressive behavior. Seclusion and restraint should only be used as a last resort.”); see also 42 U.S.C. § 290ii(b) (specifically prohibiting restraining practices employed by CHDC, by requiring that restraints on ICF/MR residents only be used to ensure physical safety and only as ordered by a licensed practitioner who clearly specifies the duration and circumstances (except in certain emergency circumstances)). CHDC violates residents’ rights by applying restraints for punitive reasons, applying restraints that exceed safety requirements, and by conditioning release from restraint on inappropriate factors, such as apologizing.
CHDC fails to provide reasonably safe conditions for CHDC residents by not taking systemic action to address or attempt to prevent recurrence of staff abuse and neglect of children and adults. Youngberg, 457 U.S. at 315-17. CHDC exacerbates the risk of ongoing serious harm by failing to ensure an environment in which staff feel safe in reporting alleged abuse and neglect, resulting in inconsistent investigations of alleged acts of abuse and neglect of CHDC children and adults.
Defendants’ own documents provide further evidence of Defendants’ substantial departure from professional standards in CHDC’s protection from harm practices. These documents prove that CHDC is not even complying with regulations for facilities receiving federal Medicaid funding that require specific steps to be taken to protect residents from abuse and neglect. See, e.g., 42 C.F.R. § 483.420(a)(5) (“[T]he facility must. . . [e]nsure that clients are not subjected to physical, verbal, sexual or psychological abuse or punishment”); 42 C.F.R. § 483.420(d)(1) (“The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect or abuse of the client.”); 42 C.F.R. § 483.420(d)(3) (“The facility
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must have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while the investigation is in progress.”); 42 C.F.R. § 483.420(d)(4) (“The results of all investigations must be reported to the administrator or designated representative or to other officials in accordance with State law within five working days of the incident and, if the alleged violation is verified, appropriate corrective action must be taken.”).
CHDC’s resident rights practices also fail to address certain rights restrictions (such as cameras) and fail to ensure that consent by residents or residents’ parents and guardians is informed and voluntary. See 42 C.F.R. § 483.10(a)(2) (“A facility must protect and promote the rights of each resident, including . . . the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.”).
In sum, CHDC’s many systemic failures and deficiencies in staff supervision and training, incident reporting, quality management practices, protection of resident rights, staff abuse and neglect, and use of mechanical restraints violate residents’ constitutional rights to reasonably safe conditions of confinement and protection from unreasonable risks of harm, subjecting residents to repeated, preventable harm.
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TABLE OF CONTENTS – PSYCHOLOGY
VI. FINDINGS OF FACT – PSYCHOLOGY AND BEHAVIORAL SERVICES..................................................................................................................... 125
A. Experts Dr. Johnny Matson and Dr. Ramasamy Manikam Credibly Testified That CHDC’s Psychological and Behavioral Services Substantially Depart from Generally Accepted Professional Standards, Causing Harm, and Risk of Harm, to CHDC Residents................................................................................................... 126
B. Instead of Providing Appropriate Psychological Care, CHDC Staff Restrain Residents with Excessively Harsh Methods, at Astronomical Rates, in Substantial Departure from Professional Standards. ................................................ 128 1) CHDC Routinely Uses Archaic Restraint Types That Substantially Depart from Professional Standards. ............................................................ 129 2) CHDC’s Frequency of Restraint Use Substantially Departs from Professional Standards. ................................................................................. 131 3) CHDC Utilizes Restraints Without Safeguards, Oversight, and Clinical Review Required by Professional Standards. ............................................... 134
C. CHDC Subjects Its Residents to Harmfully Inadequate Psychological Treatment. ................................................................................................................. 135 1) CHDC Does Not Develop Treatment Plans for All Residents Who Need Them. ............................................................................................................ 135 2) CHDC Fails To Modify Residents’ Behavior Plans Promptly in Response to Changing Needs........................................................................ 136 3) CHDC’s Behavioral Treatment Program Is Too Disorganized and Convoluted To Ensure Appropriate Care. .................................................... 137 4) CHDC’s Generic Behavioral Programs Cannot Meet Residents’ Specific Behavioral Needs. ......................................................................................... 138 5) CHDC Staff Rely on Unnecessary Restraints Rather Than Effective, Positive, Psychological Interventions. .......................................................... 140 6) CHDC Uses Treatment and Assessment Processes That CHDC Staff Themselves Admit Do Not Meet Professional Standards............................. 140
D. CHDC’s Psychological Assessment and Diagnosis Procedures Substantially Depart from Generally Accepted Professional Standards. ....................................... 142 1) CHDC’s Functional Assessment Process Is Completely Inadequate for Identifying the Causes of Resident Behavior................................................ 143 2) CHDC Assessments of Cognition, Adaptive Function, and Pain Substantially Depart from Professional Standards. ...................................... 146 3) CHDC Staff Fail To Use Assessment Instruments That Meet Professional Standards. ................................................................................. 148 4) CHDC’s Unreliable Assessments Generate Unsupportable Psychiatric Diagnoses That Substantially Depart from Professional Standards. ............ 149
E. CHDC’s Substandard Data Collection Is Unreliable................................................ 150 F. CHDC’s Psychology Services Substantially Depart from Generally Accepted
Professional Standards Because CHDC Lacks Sufficient Psychology Staff with
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G. CHDC Does Not Provide Psychology Staff with Adequate Clinical Supervision. .............................................................................................................. 156
VII. CONCLUSIONS OF LAW – PSYCHOLOGY AND BEHAVIORAL SERVICES..................................................................................................................... 159 A. CHDC’s Psychological and Behavioral Services Violate Residents’ Constitutional Right to Habilitation and Treatment.................................................. 159 B. CHDC Harms Residents with Unlawful Restraints That Violate the Fourteenth Amendment............................................................................................................... 163
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VI. FINDINGS OF FACT – PSYCHOLOGY AND BEHAVIORAL SERVICES 377. CHDC’s psychological and behavioral services substantially depart from professional standards, causing harm, and risk of harm, to CHDC residents. Instead of providing individualized psychological assessments and treatment, CHDC staff respond to residents’ behaviors by restraining them at astronomical rates that vastly exceed norms in other states. See generally FOF Part VI.A-G. 378. CHDC staff fail to conduct appropriate assessments, though accurate and comprehensive assessments make up the building blocks of a treatment plan. Rather than employing widely recognized, scientifically validated instruments, CHDC staff utilize ad hoc procedures to evaluate resident cognition, adaptive function, and behavioral function. See generally FOF Part VI.D-E. 379. CHDC also fails to monitor and re-assess residents over time to ensure that treatment plans are individualized and respond to changes in residents’ conditions and needs. Staff take months to prepare or modify treatment plans, even after agreeing that changes are necessary. While they await appropriate treatment, CHDC residents are restrained repeatedly. See generally FOF Part VI.B-D. 380. CHDC should use restraints only to address problem behaviors as a last resort when psychological treatment fails. In practice, however, CHDC does not provide the necessary psychological services that would promote safety and independence. Though Defendants fail to implement effective positive behavior interventions, Defendants maintain that the behaviors they fail to address justify continued segregation of CHDC residents. See generally FOF Part VI.AG. 381. CHDC’s most commonly used mechanical restraint devices are unusually restrictive. They include papoose boards, straitjackets, and restraints chairs. Other institutions across the
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country rarely, if ever, use such devices even when restraints may be deemed necessary. Most problematically, CHDC staff regularly use even the most restrictive mechanical devices on young children, a group that generally is not even institutionalized, let alone subjected to papoose boards. See generally FOF Part VI.B. Moreover, CHDC uses a host of procedures – including electro-convulsive shock therapy, chemical restraints, seclusion, and one-to-one supervision – that CHDC does not systematically track. So, CHDC’s use of restrictive methods is likely even higher than CHDC reports. See generally FOF Part VI.B. 382. Staffing and staffing training cause much of CHDC’s substandard psychological services. Nearly all of CHDC’s psychology staff are master’s level practitioners who do not have the necessary education, training, or experience to provide the psychological services and habilitation necessary for CHDC residents. As a result, residents suffer harm from both unnecessary restraints and their unaddressed psychological behaviors. See generally FOF Part VI.E-F. 383. Several of the unlawful deficiencies identified by the United States in psychological services were also noted by the Arkansas Department of Education, in its report on special education services at CHDC. Compare US Exs. 1197-1198, 1201, 1203, 1211, 1214, 1216, 1217 (lack of: staff, behavioral interventions in the school setting, integration of services, and attention to communication issues), with Matson Tr. 1095:13-1097:25.
A. Experts Dr. Johnny Matson and Dr. Ramasamy Manikam Credibly Testified That CHDC’s Psychological and Behavioral Services Substantially Depart from Generally Accepted Professional Standards, Causing Harm, and Risk of Harm, to CHDC Residents.
384. Dr. Johnny Matson is a licensed clinical psychologist. He has practiced for 34 years, and currently works as a professor, distinguished research master, and director of clinical training in the Department of Psychology, Louisiana State University. Over the course of his career, he has
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consulted at 39 developmental centers in 18 states. He serves as editor for 2 professional journals and has published approximately 500 articles and 30 books. Matson Tr. 990:3-1001:9; US Ex. 551. Dr. Matson received the Frank J. Menolascino Award from the National Association for the Dually Diagnosed, and his peers have recognized him as one of the leading experts in the fields of developmental disabilities and behavior therapy. He testified as an expert on applied behavioral analysis and psychological treatment of people with developmental disabilities. Matson Tr. 990:3-1001:9; US Ex. 551. CHDC’s chief psychologist, Dr. Carl Reddig, admits that Dr. Matson is an authority in the field of psychology. Reddig Tr. 1978:23-1979:5. 385. Dr. Ramasamy Manikam is a licensed clinical psychologist. His major areas of professional focus include autism, developmental disabilities, and self-injurious behavior. He has served as an associate editor for the Journal of Child and Family Studies. He provided expert testimony on applied behavioral analysis and psychological treatment of people with developmental disabilities. Manikam Tr. 3064:2-3068:22; US Ex. 584. 386. Drs. Matson and Manikam concluded that CHDC’s psychological services substantially depart from generally accepted professional standards of care. See generally FOF Part VI.B-F. In forming his professional opinion, Dr. Matson completed 2 week-long tours of CHDC, during which he interviewed psychology staff, reviewed cases with staff, and examined a large volume of documents including resident behavioral plans and over 500 census summary data sheets. Matson Tr. 1001:10-1002:19. Dr. Manikam also completed two week-long tours of CHDC. While on-site, Dr. Manikam interviewed psychology staff and examined a large volume of documents, including treatment plans, restraint procedures, and psychology forms. Dr. Manikam also previously inspected CHDC in 2007, prior to this litigation. Manikam Tr. 3068:23-3075:8.
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B. Instead of Providing Appropriate Psychological Care, CHDC Staff Restrain Residents with Excessively Harsh Methods, at Astronomical Rates, in Substantial Departure from Professional Standards.
387. Due to CHDC’s failure to provide effective behavioral supports and services, CHDC routinely and needlessly subjects individuals to strikingly high rates of harmful restraints. CHDC does not provide timely and effective behavioral interventions that would help residents replace maladaptive behaviors with safe and appropriate ways of expressing themselves. See FOF Part VI.C-F. Lacking effective means to change residents’ maladaptive behaviors, CHDC simply suppresses those behaviors through extraordinary rates and forms of harmful restraints. These include extensive use of various types of antiquated “mechanical” restraints (i.e., restraint equipment), physical holds, and chemical restraints. CHDC employs these highly restrictive measures regardless of a resident’s age and notwithstanding their obvious traumatic effect. See FOF Part VI.B. CHDC staff use even the most severe restraints on children, survivors of domestic violence, and in at least one case, on a child who abusive staff had previously deliberately stomped on after strapping the child to a papoose board. CHDC does not provide clinical oversight of its restraint use. In virtually no instance do CHDC psychology staff clinically assess the circumstances that led staff to restrain a resident or assess the impact that the restraint had on the individual or his/her behavior. Further, although CHDC’s self-reported rates of restraint are high, CHDC’s rates unquestionably undercount the actual rates of restraint it uses on residents. In summary, CHDC’s harmful restraint practices substantially depart from generally accepted professional standards of care. See FOF Part VI.B. 388. CHDC restrains residents rather than addressing behaviors with adequate assessments and behavioral treatment. Manikam Tr. 3162:21-3163:3; see Matson Tr. 1178:4-1179:18; see generally Appx. For example, staff used restraints to address SA’s aggression without intervening to address the suspected trigger for the aggression. Similarly, staff tied resident DB
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to a papoose board instead of addressing environmental and communication factors triggering the behaviors. In yet another case, staff used papoose boards and physical holds on RC because the generic “point system” that Defense witnesses admit has not worked for other residents also did not work for RC. CHDC’s other misuses of restraint include placing a resident in a jumpsuit for staff convenience, namely, to reduce the frequency with which staff had to redirect the resident from engaging in maladaptive behavior, and many more. See Appx. at 20, 21, 23, 28, 32 (Other specific examples include BH and LW.).
1) CHDC Routinely Uses Archaic Restraint Types That Substantially Depart from Professional Standards.
389. CHDC extensively uses 41 types of restraints, including antiquated restraint methods that do not comport with contemporary, generally accepted professional standards. Matson Tr. 1119:4-1120:18; Manikam Tr. 3157:5-3162:5; Reddig Tr. 1947:9-23; US Exs. 596 & 623. In particular, CHDC’s widespread use of the papoose board, camisole jacket (a.k.a. straitjacket), and restraint chair, substantially departs from generally accepted contemporary practice. See Matson Tr. 1119:4-1120:22, 1255:7-10; Manikam Tr. 3157:5-3163:3. Notably, Defendants produced no evidence of any other jurisdiction that uses these outdated types of restraints on such a wide scale. See also Cooper Tr. 2425:21-2426:1 (never needed to create a restraint program at University of Arkansas Medical School), 2427:14-20; Warren Tr. 4721:1-4722:4 (no papoose board or CHDC-type restraint chair used in defense consultant’s private practice facilities). 390. CHDC uses the outdated papoose board in behavior programs for approximately 18 percent of CHDC residents. Manikam Tr. 3157:5-3159:5. 391. The use of completely restrictive restraints, such as the papoose board, on children as young as the ones housed at CHDC, is unprecedented. Matson Tr. 1179:24-1180:1. Other
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systems do not use such mechanical restraints at all on young children. See Matson Tr. 1119:161120:22, 1179:19-1180:10; Manikam Tr. 3160:16-3162:5 (states have gone restraint free and use of restraints on children is typically considered unnecessary), 3163:4-12 (other systems do not even admit children to residential facilities like CHDC). In contrast, CHDC uses severely restrictive procedures, including papoose boards, on a wide range on children. Examples include CA (18 years old, papoose board); SA (15 years old, papoose board and chemical restraints); DB (17 years old, papoose board); HB (13 years old, prone physical holds); RC (15 years old, papoose board and physical holds); TC (9 years old, helmet and papoose board); ZS (12 years old, papoose board), LW (10 years old, soft shell helmet used without appropriate safeguards and treatment plan). See Appx. at 12, 18, 20,21, 23, 24, 28. 392. CHDC’s use of restraints in hazardous locations increases the risk of resident injury. See, e.g., Matson Tr. 1180:5-10 (restraint chair located in difficult to supervise location at back of housing unit, with sharp objects in vicinity). 393. CHDC has used highly invasive techniques, such as electroconvulsive shock therapy (“ECT”), on at least one CHDC resident, BH, without showing that it first attempted appropriate behavioral interventions. Warren Tr. 4798:3-4799:12. CHDC’s use of extreme measures without first attempting less drastic treatment is a substantial departure from generally accepted professional standards. See generally FOF Part VI.B-D; see also Manikam Tr. 3109:21-3010:24; US Exs. 30-12, 687. Similarly, CHDC staff considered pulling a resident’s teeth to address the results of behavior (persistent rubbing of the gums) that CHDC should have assessed and treated with less drastic behavioral interventions. See Manikam Tr. 3109:21-3010:24; US Exs. 30-12, 687.
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394. Defendants are also using inappropriate chemical restraints. Matson Tr. 1135:181136:23. CHDC staff use medications inappropriately to manage behaviors in lieu of appropriate diagnoses and behavioral programs. Matson Tr. 1135:18-1136:23. At CHDC, repeated mismatches between the actual behavioral symptoms being addressed and the purported diagnoses show that the psychiatrist uses medications to chemically restrain residents. Rather than targeting symptoms typically associated with the diagnoses CHDC staff cite when justifying the use of medications, they often target and taper treatment based on behaviors unrelated to the diagnoses, such as aggression, self-injury, or pica. If staff were actually treating the alleged diagnosis, their target and taper criteria would focus more on typical symptoms of such diagnoses. Matson Tr. 1135:18-1136:23. 395. Even if staff were not using inappropriate chemical restraints per se, CHDC’s high rate of psychotropic medication use – at least 50% of the residents – indicates that CHDC’s substandard behavioral interventions result “in overmedication and ineffective treatments.” Matson Tr. 1240:8-16; Mikkelsen Tr. 3584:16-19.
2) CHDC’s Frequency of Restraint Use Substantially Departs from Professional Standards.
396. CHDC uses mechanical restraints at the “astronomical” frequency of over 1,000 times per month. Matson Tr. 1126:10-18. In April 2009 alone, CHDC staff used “planned mechanical restraints,” (i.e., restraints implemented as part of a behavioral plan and not as unplanned, emergency restraints) 1,388 times. Manikam Tr. 3158:8-3158:13; see, e.g., Appx. at 33, 36 (CHDC restrains individual residents, such as KH and NS, for extensive periods without adequate treatment.). 397. CHDC staff mechanically restrain residents with excessive frequency compared to many similar facilities that use effective behavioral interventions and have reduced or even eliminated
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mechanical restraints from individuals’ behavior programs. See Matson Tr. 1118:4-1120:22, 1126:7-18; Manikam Tr. 3157:5-3163:3; see also Cooper Tr. 2425:21-2426:1 (CHDC psychological examiner never needed to create a restraint program when working at University of Arkansas Medical School), 2427:14-20 (never attended professional conference or continuing education class that discussed use of restraints such as the papoose board); Warren Tr. 4721:14722:4 (papoose board and restraint chairs not used by any mental hospitals where Defense psychiatrist practices). 398. CHDC restraint data are unreliable and, while official numbers are extremely high, they likely understate the amount of CHDC’s actual restraint use. Matson Tr. 1125:17-1127:24 (Problems with inconsistent data reporting include separate treatment of high restraint individuals.), 1260:19-1261:6 (conflicting reporting on emergency restraints), 1315:14-1318:21 (CHDC restraint data not informative); Manikam Tr. 3159:6-3160:6 (CHDC staff report data depending on various restraint categories that make little difference in terms of restrictiveness.); see also Reddig 2085:21-2086:25 (reporting varies depending on how facility chooses to classify restraint, e.g., one piece jumpsuit used as “preventive restraint”), 2100:3-2103:10 (variety of tracking methods and omissions, such as the fact that name and time on behavior reports may not indicate person who filled out the behavior report or actual length of restraint use), 2108:18-22 (behavior reports used to record restraints and associated behaviors themselves can include all types of issues besides behaviors); Cooper Tr. 2462:1-2466:11 (CHDC uses a variety of different methods for tracking and reporting different types of restraint), 2473:20-2474:18 (differences between restraint categories are unclear; restraints can be used on an emergency basis even if resident does not have a safety plan governing restraint use); see e.g., US Exs. CR-1, 627 (2007
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CHDC memo directing that individuals with frequent restraint use should no longer have a behavior report for each restraint form). 399. CHDC arbitrarily uses restrictive measures that staff do not even count as restraints, such as personal holds (i.e., staff physically holding resident’s limbs or other body parts), and “separation to allow calming,” with little clinical oversight or monitoring for the appropriateness of these restraints or their impact on the individual and his/her behaviors. See, e.g., Manikam Tr. 3124:17-3126:14 (personal holds are not carefully tracked and safeguarded based on what can be widely varying levels of restrictiveness for the particular hold used); Manikam Tr. 3217:7-22 (staff bar residents from leaving rooms, an unmonitored practice that is functionally similar to “seclusion”); Adams Tr. 1842:23-1844:20 (“separation to allow calming” criteria so vague that staff may effectively restrict resident to room); Matson Tr. 1144:3-1145:6 (inadequate 1 to 1 supervision used rather than adequate behavioral treatment). Moreover, CHDC's chief psychologist was not even familiar with the various types of personal holds that staff can use at CHDC. Reddig Tr. 1983:16-1984:10. Since CHDC does not track these measures as restraints, CHDC’s actual number of restrictive measures each month is even higher than CHDC reports. 400. While there are difficulties comparing restraint use across populations or facilities, statistical comparisons reinforce conclusions of experts Dr. Matson and Dr. Manikam that CHDC’s restraint use is excessive and inappropriate. Matson Tr. 1181:20-1182:12 (3-4 residents with restraint programs in a facility housing 300-400 residents in expert’s practice, versus “70 and 80” self-reported restraint programs at CHDC, which does not include other restraints actually in use at CHDC, such as lap trays, seat belts, or chemical restraints), 1133:20-1134:15 (national study recommending minimizing use of restraints); Manikam Tr. 3157:5-3163:16 (general discussion of CHDC’s restraint use), 3213:25-3215:4 (comparing far more serious
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behaviors treated in other facilities that do not rely on restraints as much as CHDC does), 3216:12-19 (discussing restraint-free or nearly restraint-free facilities); US Ex. 691.
3) CHDC Utilizes Restraints Without Safeguards, Oversight, and Clinical Review Required by Professional Standards.
401. CHDC’s lack of important restraint safeguards further illustrates how CHDC restraint practices substantially depart from generally accepted professional standards. Matson Tr. 1122:13-1124:12 (poorly defined terms and policies), 1128:17-1131:4 (lack of post-restraint reviews); Manikam Tr. 3075:4-3077:13; US Ex. 692; Reddig Tr. 1983:16-1984:10. CHDC policies and practices do not appropriately define what CHDC considers a “restraint,” or other important terms associated with the use of restraint. Matson Tr. 1122:13-1124:12. Further, CHDC’s restraint programs fail to include clear descriptions of behaviors during which staff can use the restraints. Matson Tr. 1122:13-1124:12 (lack of clear triggers puts staff “in a horrible position”). In addition, CHDC allows “Qualified Mental Retardation Professionals” (“QMRPs”) to authorize the use of restraints, but CHDC’s QMRPs have substantially lower qualifications than those in similar facilities. Matson Tr. 1063:4-25, 1129:24-1130:12; US Ex. 692 (Behavior Procedures policy.). 402. In virtually no instance do CHDC psychology staff clinically assess the circumstances that led staff to use the restraint or assess the impact that the restraint had on the individual or his behavior. Such clinical, post-restraint reviews are essential because they directly affect care. For instance, post-restraint reviews should include clinical evaluation of the incident, counseling for individuals traumatized by staff’s restraint, and allow staff to promptly assess and evaluate the resident’s condition. Matson Tr. 1128:17-1129:23; Manikam Tr. 3075:4-3077:4.
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403. CHDC’s restraint practices substantially depart from generally accepted professional standards of harm, causing residents harm and unnecessary risk of harm. See generally Matson Tr. 1120:15-22; Manikam Tr. 3160:23-3163:16.
C. CHDC Subjects Its Residents to Harmfully Inadequate Psychological Treatment.
404. Even though CHDC uses restraints on an extraordinarily wide scale, staff do not correspondingly provide treatment programs for a large number of residents with serious behavioral and habilitation needs. Matson Tr. 1116:11-1118:23; US Exs. 588 through 592, 598 & 617. Instead, unqualified psychological examiners (master’s level practitioners) develop treatment plans that do not meet generally accepted professional standards because – (1) they take too long to be developed and implemented; (2) key components are located in different and often contradictory documents; (3) behavioral interventions are generic, with insufficient differentiation between individuals or across settings (e.g., school versus housing area); and (4) critical components are missing from plans. See FOF Part VI.C-G; US Exs. 531 through 580, 603 through 604, 631 through 666, 687 through 690, 701-1 through 701-6. As a result of such deficiencies, CHDC residents suffer from serious behaviors without effective and timely treatment. See FOF Part VI.B-D; Matson Tr. 1084:12-1085:25; Manikam Tr. 3142:8-3145:3; See generally Appx.
1) CHDC Does Not Develop Treatment Plans for All Residents Who Need Them.
405. Nearly every CHDC resident has serious cognitive, communicative, and functional limitations. Most of CHDC’s residents have a variety of behaviors that require behavioral management, such as self-injury, aggression, and pica (i.e., eating inedible objects). Matson Tr. 1116:11-1118:23; US Exs. 588 through 592, 598 & 617.
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406. CHDC’s psychological services fail to meet the needs identified by CHDC staff themselves. As only 30-40 percent of CHDC residents actually have behavioral programs, either CHDC fails to provide services to many residents with serious behavioral problems, or CHDC staff are misclassifying a large number of residents through a substandard assessment process. See Matson Tr. 1116:11-1118:23.
2) CHDC Fails To Modify Residents’ Behavior Plans Promptly in Response to Changing Needs.
407. Behavioral plans at CHDC are often static, and CHDC staff do not promptly re-evaluate and update behavioral plans based on significant changes in residents’ conditions. Matson Tr. 1084:12-1085:25; Manikam Tr. 3142:8-3145:3 (detailing how delays result in non-alignment of assessments and treatment); see, e.g., US Exs. 564, 567, 578, 580, 701-1 through 701-6. Generally accepted professional standards require that staff develop, implement, and monitor a modification to the residents’ behavioral plans as soon as there is a change in behavior that requires a new intervention. See generally Matson Tr. 1084:12-1085:25; Manikam Tr. 3142:83145:3. 408. CHDC’s own internal e-mails admit that the “time frame for safety plan implementation is terrible.” US Ex. 611; see generally Appx. Staff also admit that residents experience long delays, sometimes “several months” in “getting changes approved for the safety plans.” Cooper Tr. 2452:12-2453:7. CHDC staff almost “universally acknowledge[ ]” this delay problem. Cooper Tr. 2452:12-2453:7. For example, in the case of CA, it took seven months to implement a safety plan even though CA’s behaviors were severe enough to require use of a papoose board, there were no significant changes in GB’s treatment plan over the years, and staff did not implement TC’s treatment plan for eight months after it was completed. See Appx. at 12, 21, 30.
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409. Nor do CHDC’s special staffings or incident review committees adequately address needed changes to resident plans, because those processes are not designed to make significant clinical changes to treatment based on up-to-date information. Cooper Tr. 2431:3-2432:6. A “special staffing is more like an addendum to the IPP than a change to the existing IPP.” Cooper Tr. 2431:3-2432:6. 410. Even when CHDC psychology staff ostensibly assess or reassess residents (e.g., identifying the functions of behaviors), staff do not properly incorporate the assessment results into treatment programs. Matson Tr. 1069:17-1072:15; Manikam Tr. 3124:7-14.
3) CHDC’s Behavioral Treatment Program Is Too Disorganized and Convoluted To Ensure Appropriate Care.
411. Expert Dr. Matson concluded that CHDC’s treatment process has some of the most significant deficiencies he has ever seen compared to the 39 centers that he has visited in 18 states over a period of 30 years. He found that CHDC’s entire treatment process is disorganized, with different (and often inconsistent or contradictory) components of the behavioral programs located in multiple documents. Matson Tr. 1286:7-1289:14. 412. CHDC’s jumbled system requires that direct care staff theoretically reference safety plans, Quick Reference Guides (“QRG’s”), individual programs, positive behavior support plans, and other treatment documents when determining how to manage a resident’s issues. This process is too convoluted to be effective. The psychology examiners themselves had “tremendous difficulty being able to explain the difference” between different behavioral program documents. Matson Tr. 1287:22-1288:18; see also Adams Tr. 1787:11-1788:17 (direct care staff are supposed to be familiar with multiple documents containing different components of the residents’ behavioral programs).
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413. CHDC staff do not implement the behavioral programs consistently across different settings (e.g., in school and the living unit). Matson Tr. 1093:21-1097:2 (CHDC’s staff overlook important considerations that affect the successful implementation of assessment and treatment programs across settings), 1106:9-1107:18; US Exs. 1197 through 1198, 1201, 1214, 1216 through 1217.
4) CHDC’s Generic Behavioral Programs Cannot Meet Residents’ Specific Behavioral Needs.
414. CHDC staff routinely use generic interventions to address resident behaviors that fail to account for the particular elements of the resident’s behavior. Manikam Tr. 3139:25-3142:5. Professionals who understand “behavior principles understand[] that behavior is contextual.” Manikam Tr. 3139:25-3142:5. Yet CHDC often uses generic interventions for residents. Staff do not differentiate between environmental settings (e.g., when a resident is in their living unit versus school) when developing treatment. Similarly, staff use generic “blocking” interventions regardless of individual characteristics. Manikam Tr. 3139:25-3142:5; see also US Exs. 1197 through 1198, 1201, 1203, 1211, 1214, 1216, 1217 (Arkansas’ Department of Education findings). 415. CHDC treatment programs lack critical components necessary for successful intervention, such as identification and interruption of precursors to aggressive behavior. Manikam Tr. 3138:15-3141:24; see US Ex 621 (policy on restraints, release criteria, and programming during restraint intervals). Precursor behavior signals impending, more obvious, aggressive behavior. For instance, a person may tense before making an aggressive motion. When a person exhibits a precursor to more serious behavior, the generally accepted minimum practice requires staff to interrupt the chain before the more serious behavior occurs. Yet, “nine
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out of ten” CHDC plans do not even identify an individual’s precursor behavior, so staff have no way “to intervene before the behavior is fully exhibited.” Manikam Tr. 3138:15-3141:24. 416. In many cases, CHDC plans demonstrate staff’s complete inattention to serious behavioral issues. See generally Appx. For example, SA’s triggers for alleged self-injurious behaviors were not tracked or addressed; DB’s plan identified no replacement behaviors or strategies for mitigating communication issues; MB had an inadequate psychological assessment and treatment planning for managing eating issues, etc. See Appx. at 21, 23, 26. 417. CHDC psychology staff also largely ignore their habilitative role when developing plans for residents (i.e., helping to develop independent living skills). Matson Tr. 1103:3-1106:1 (importance of habilitation training in basic skills, such as toileting); see also Cooper Tr. 2459:17-2460:1 (examiner has never done habilitation training), 2456:19-20 (no psychosocial skills instruction); Adams Tr. 1778:15-17 (no programming for extreme food selectivity and rapid eating), 1793:15-1796:16 (psych examiner received no education or training on habilitation); Cooper Tr. 2456:5-12 (no programming for extreme food selectivity and rapid eating); Manikam Tr. 3101:7-3104:4, US Ex. 562-3 (no functional analysis to determine if resident MB may have rapid eating disorder before placement on modified diet). 418. The CHDC psychology staff are not even proficient with important behavioral terms of art, such as “treatment fidelity,” and behavioral techniques such as “reinforcement,” “shaping,” and “chaining.” See Matson Tr. 1074:11-1084:11; see also Adams Tr. 1781:3-1783:5; Reddig Tr. 2026:19-2028:19. Such concepts and techniques serve as the foundations for behavioral treatment and staff should employ them when crafting an individualized treatment plan, but CHDC staff have difficulties even describing these concepts and techniques, let alone applying them in practice. See Matson Tr. 1074:11-1084:11.
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5) CHDC Staff Rely on Unnecessary Restraints Rather Than Effective, Positive, Psychological Interventions.
419. When staff utilize a resident safety plan that includes “planned restraints,” CHDC has not required that staff also develop a positive behavioral support plan, which is a treatment document that includes less restrictive elements such as positive reinforcement and other evidence-based techniques to modify behavior. See Reddig Tr. 1945:21-1946:23, 1947:6-8. 420. CHDC’s psychology treatment programs do not include necessary safeguards to prevent abuses of restrictive interventions. For example: CHDC taper criteria fail to meet minimum standards. Matson Tr. 1089:7-14, 1135:21-1137:23, 1150:22-1153:7, 1158:7-1160:9; see e.g., US Exs. 561 (resident SA), 567 (resident TC) & 571-1 (resident RC); see also Adams Tr. 1801:20-1803:20 (equivocating on the role of taper criteria in decisions on restraint use and discharge). CHDC staff do not set effective, data-based criteria for when they expect to taper the use of restrictive interventions, and even when residents meet staff’s arbitrary taper criteria, no expectation exists that staff then actually reduce medications or restraints. Matson Tr. 1089:714, 1135:21-1137:23, 1150:22-1153:7, 1158:7-1160:9. 421. Psychology staff were not aware of any policy specifying the minimum number of staff required when using restraints. See, e.g., Adams Tr. 1846:8-17; Cooper Tr. 2473:1-5.
6) CHDC Uses Treatment and Assessment Processes That CHDC Staff Themselves Admit Do Not Meet Professional Standards.
422. CHDC adopted the current substandard assessment and treatment process after consulting with Dr. Kevin Walsh, a defense witness Defendants also used as a pre-trial psychology consultant. Dr. Walsh, however, is not a licensed psychologist. See Reddig Tr. 1962:161963:7; Walsh Tr. 5783:19-23, 6042:3-8.
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423. CHDC’s treatment approaches have never been subjected to peer review, formal study, or even studies by CHDC staff themselves to determine effectiveness. Reddig Tr. 2066:3-23. 424. Published, well-established, professional standards support Drs. Matson’s and Manikam’s expert conclusions regarding the deficiencies found at CHDC. For example, CHDC psychology staff admit that the Diagnostic and Statistical Manual of Mental Disorders IV (“DSM IV”) represents the standard for conducting diagnosis and some of their assessments. Matson Tr. 1038:22-1039:19; Reddig Tr. 1973:2-12; Adams Tr. 1770:2-3 (acknowledging DSM IV is one of the standards in the field); Cooper Tr. 2429:5-7 (DSM IV “considered authoritative”). 425. Defendants’ own psychiatry consultant, Dr. Andrew Warren, cited to the “Expert Consensus Guidelines” (“ECG”) as a source of professional standards. See generally Warren Tr. 4742:20-4755:2. These Guidelines, cited by Defense consultants, on their face require better care than found at CDHC. Those requirements include: using applied behavioral analysis, functional analysis, communication and environmental assessments, psychosocial interventions, “most specific DSM-IV TR diagnosis possible,” behavior rating scales and psychometric tests, rigorous data analysis, re-assessment of diagnoses before medication modifications, and caution about continued use of medications when there is no proven utility. See generally Warren Tr. 4742:20-4755:2, 4759:13-22 (citing ECG as a standard). 426. The DSM IV, ECG, journal articles, and other standards in the field specifically echo the generally accepted professional behavioral techniques and assessment approaches outlined by experts Dr. Matson and Dr. Manikam. CHDC substantially departs from these generally accepted practices. See generally FOF Part VI.A-G; Warren Tr. 4742:20-4755:2, 4759:13-22. 427. Numerous examples illustrate the diagnostic and assessment problems at CHDC such as mismatches between diagnoses and interventions, interventions based on unsound assessments,
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or continued use of ineffective interventions without reassessment of “rule out diagnoses.” See generally Appx. 428. CHDC’s failure to provide adequate behavioral assessment and treatment causes residents harm and unreasonable risk of harm. Matson Tr. 1178:4-1179:18, 1305:1-1306:24, 1312:9-1313:4; see generally Appx. This harm manifests itself in a myriad of ways, ranging from the loss of communication and independent living skills to the physical and psychological harm restraint use causes. Matson Tr. 1178:4-1179:18, 1305:1-1306:24, 1312:9-1313:4; see generally Appx.
D. CHDC’s Psychological Assessment and Diagnosis Procedures Substantially Depart from Generally Accepted Professional Standards.
429. Psychological assessments serve as the foundation for psychological treatment. Matson Tr. 1004:7-1006:5, 1007:1-6, 1052:24-1054:15. One of the primary roles of a facility psychologist is to conduct assessments to determine an individual’s capabilities and to identify the “function” (e.g., motivating factor or trigger) for an individual’s behaviors. See, e.g., US Ex. 555 (CHDC psychological examiner job description). 430. Inaccurate psychology assessments prevent psychology staff from accurately identifying a resident’s strengths and weaknesses or the cause of their behaviors. As a result, the staff cannot develop an appropriate treatment plan. Matson Tr. 1007:1-6, 1052:24-1054:15. CHDC's psychological assessment process fails to meet professional standards because it does not: (1) use reliable and effective assessment tools; (2) identify the function of maladaptive “target behaviors,” (i.e., a prescribed behavior identified for change); or (3) properly incorporate basic assessment information in the development of treatment programs. See generally FOF VI.D. 431. CHDC assessments of individuals’ behavioral needs substantially depart from generally accepted minimum professional standards because psychology staff do not use, and in many
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cases do not even know about, basic behavioral assessment instruments and techniques. Matson Tr. 1006:6-1030:10 (CHDC functional assessment of behaviors do not meet minimum standards), 1032:24-1040:8 (CHDC’s cognitive and adaptive function assessments do not meet minimum standards with 42 individuals misclassified as more severely disabled than testing shows), 1040:9-1050:22 (poor assessment of psychopathology (i.e., diseases of the mind) resulting in poor treatment and use of dubious diagnoses), 1052:24-1054:6 (processes are not evidence-based or scientific), 1054:7-1062:4 (data collection that underpins assessment and treatment does not meet professional standards of reliability and fidelity); see also, Reddig Tr. 1957:2-6 (CHDC Chief Psychologist admitting that he could not recall whether any of his staff use peer-reviewed tests); US Exs. 1197-1198, 1201, 1203, 1211, 1214, 1216, 1217 (Arkansas' Department of Education findings).
1) CHDC’s Functional Assessment Process Is Completely Inadequate for Identifying the Causes of Resident Behavior.
432. CHDC’s functional assessments lack many of the most critical elements of a clinically useful functional assessment. See generally Matson Tr. 1007:7-1024:24. 433. When treating a resident’s behavioral challenge, generally accepted standards require psychology staff to define the maladaptive target behavior that is the focus of the behavioral intervention, so that staff can consistently identify and respond to the behavior. Matson Tr. 1019:3-19, 1024:25-1029:4, 1157:9-22; Manikam Tr. 3223:9-14, 3226:1-8. CHDC psychology staff do not understand the process for defining target behavior. Instead of crafting an objective description of the target behavior so that all staff can consistently identify and respond to it, CHDC psychology staff use vague, broad terms that do not allow for faithful implementation of behavior plans. Matson Tr. 1019:3-19, 1024:25-1029:4, 1157:9-22; Manikam Tr. 3223:8-14, 3226:1-3226:8.
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434. After objectively defining the maladaptive target behavior, staff must assess the function of the behavior. Matson Tr. 1006:6-1030:10; see Manikam Tr. 3074:3-8, 3087:23-3138:6, 3148:11-19 (discussing examples of how failure to assess behavioral function impedes treatment). 435. CHDC’s process, however, actually consists of a short “worksheet” that CHDC's Chief Psychologist, Dr. Reddig, admits is not as rigorous as a true “functional analysis.” Reddig Tr. 1959:4-1961-8, 1967:6-9, 1968:15-1970:2. Moreover, this worksheet has never been peer reviewed or validated. Reddig Tr. 1959:4-1961-8, 1967:6-9, 1968:15-1970:2; Matson Tr. 1006:6-1030:10; Manikam Tr. 3074:3-8, 3087:23-3138:6, 3148:11-19; Adams Tr. 1776:17-25 (CHDC does not “use any standardized measure of functional assessment that is referenced in the professional literature.”); Cooper Tr. 2428:7-21 (The functional assessment form used by CHDC has not been “validated in any professional journal of publication.”). Still, CHDC staff use this simple worksheet as the primary means for assessing the function of behaviors across the facility. Reddig Tr. 1968:15-1970:2. 436. CHDC’s functional assessment form asks staff to postulate what causes a behavior. This violates generally accepted professional standards, because extensive research demonstrates that what people “think causes something and what actually causes it when you actually do a systematic [functional] evaluation are often quite different.” Matson Tr. 1024:15-24. 437. This functional assessment form does not require staff to consider factors professionals commonly recognize as contributing to behaviors, such as environmental conditions and histories of aggression between specific individuals. Matson Tr. 1172:12-1173:19; Manikam Tr. 3095:143097:2; see, e.g., US Exs. 561-9 (NS fights) & 656 (ZS fights); see also Warren Tr. 4726:234727:1 (admitting that he saw no indication that CHDC’s psychiatrist ever looks at patterns of
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repeat injury by one resident against another). As a result, staff often do not consider basic interventions, such as separating individuals who do not get along, or moving individuals to smaller settings. Matson Tr. 1172:12-1173:19; Manikam Tr. 3095:14-3097:2. 438. When staff have identified the maladaptive behavior and determined its function, they should develop an intervention using that information. CHDC staff cannot implement interventions consistently, however, since target behaviors are often not clearly defined. This inconsistent application makes it difficult to determine which factors “are resulting in changes in frequency of behavior.” Matson Tr. 1145:7-10, 1019:3-19, 1024:25-1029:4, 1157:9-22; Manikam Tr. 3223:9-14, 3226:1-3226:8. 439. Additionally, CHDC staff conduct a single functional assessment for all target behaviors instead of independently and separately assessing each behavior as required by generally accepted professional standards. Matson Tr. 1095:13-1096:16. Different behaviors may have completely different triggering conditions, so a single assessment will likely fail to provide adequate information. Matson Tr. 1095:13-1096:16. 440. The data that CHDC staff does collect when completing a functional assessment is not gathered scientifically. Matson Tr. 1017:21-1020:8 (CHDC does not use recognized scaling methods, scatter plots/graphing, or clear target behaviors), 1021:11-1022:13 (failure to ensure reliable data), 1145:7-1147:5 (lack of graphing and data analysis methods to differentiate behavioral factors); Manikam Tr. 3226:18-3227:6. In fact, “[e]ach individual psychological examiner pretty much designs their own data collection system.” Matson Tr. 1065:23-1066:18, 1156:6-1157-2; see e.g., US Ex. 554. This haphazard approach prevents CHDC from ensuring “continuity or standards or consistency” in care. Matson Tr.1065:23-1066:18. Without a standard scientific approach to data collection and analysis, CHDC staff assessments about the
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function of resident behaviors are untrustworthy and clinically unsound. Matson Tr. 1017:211020:8, 1021:11-1022:13, 1065:23-1066:18, 1145:7-1147:5; Manikam Tr. 3226:18-3227:6; see also US Ex. 612 (staff reference to trying to generate more “data type” numbers after initiation of litigation). 441. The frequency of CHDC’s functional assessments also substantially departs from generally accepted professional standards of care. See generally Matson Tr. 1156:9-1157:2. Instead of completing a new assessment any time a new maladaptive behavior appears, CHDC staff prepare functional assessments only about once a year when the interdisciplinary team meets. Reddig Tr. 1971:8-1972:3. 442. CHDC staff do not even apply the substandard worksheet functional assessment process when assessing children unless the child has a “safety plan that includes restraint usage.” Adams Tr. 1790:16-1791:19.
2) CHDC Assessments of Cognition, Adaptive Function, and Pain Substantially Depart from Professional Standards.
443. CHDC’s assessment of residents’ level of cognitive and adaptive function (i.e., level of developmental disability) does not meet generally accepted minimum professional standards in general, and also does not even produce results that are consistent with internal CHDC standards. Matson Tr. 1032:24-1040:8 (CHDC’s cognitive and adaptive function assessments do not meet minimum standards, and even under CHDC’s methodology, at least 42 individuals were misclassified as more severely disabled than testing shows). As a result, CHDC staff regularly misclassify residents’ potential for skills training, such that residents may not receive appropriate habilitation activities, which lead to greater independence. Matson Tr. 1034:10-1035:1. 444. Staff combine cognitive and adaptive test results instead of evaluating cognition based on the standards established by the American Psychiatric Association’s DSM-IV. This improper
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combination causes CHDC staff to frequently misclassify residents as having more severe cognitive deficits than the residents actually have. Staff then rely on the incorrect results and provide residents with an inappropriate level of care. Matson Tr.1038:18-1040:5. 445. CHDC psychology staff should conduct assessments of communication issues, separate from the adaptive function assessment responsibilities of other CHDC departments. At facilities like CHDC, nearly “everybody has a communication problem,” and many standardized tools exist that allow psychology staff to address residents’ communication needs from a behavioral perspective. Matson Tr. 1051:5-1052:23. Yet, at CHDC, the psychology staff do not play a meaningful role in assessing resident communication needs, even when a resident exhibits maladaptive behaviors to communicate needs they cannot otherwise express. See Matson Tr. 1051:5-1052:23, 1079:7-1082:1 (example of failure to teach alternative communication skills and address communicative function of behavior for residents who exhibit aggression to communicate needs); Reddig Tr. 1988:8-21(chief psychologist unable to identify or address communication assessments because they are outside of his expertise or scope of responsibility). 446. CHDC psychology staff also do not adequately assess pain issues that contribute to behaviors. Matson Tr. 1005:3-1006:5, 1030:11-15 (CHDC staff not assessing pain); see, e.g., Adams Tr. 1778:3-14 (no formal instrument “to track pain or how people are experiencing pain”), Cooper Tr. 2440:4-5 (does not “use any kind of pain tracking instrument”); see also Reddig Tr. 1950:21-1951:17 (psychologist accepting no role in pain monitoring). 447. CHDC staff do not assess residents’ cognitive and adaptive functioning frequently enough to meet residents’ needs. Matson Tr. 1036:22-1037:15. CHDC largely stops performing assessments of individuals’ cognitive and adaptive functioning once a resident reaches
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adulthood, though function continues to change past adolescence and residents’ training and treatment needs may shift. Matson Tr. 1036:22-1037:15.
3) CHDC Staff Fail To Use Assessment Instruments That Meet Professional Standards.
448. CHDC’s psychology staff should be familiar with, and use, professionally accepted psychological instruments to assess individuals with developmental disabilities, because tests validated for a population are more likely to be accurate or useful. Matson Tr. 1068:13-1069:6, 1032:24-1050:23. Instead, CHDC staff do not use, and indeed are unaware of, peer-reviewed diagnostic instruments professionals use in their field. See, e.g., Adams Tr. 1777:1-1778:14; Cooper Tr. 2439:20-2440:5; Reddig Tr. 1957:2-6, 2038:24-2040:6. CHDC’s Chief Psychologist admitted that he could not recall any of his staff using peer-reviewed tests. Reddig Tr. 1957:2-6, 2038:24-2040:6. The failure to use these trusted instruments is itself a violation of generally accepted professional standards, but CHDC’s problem is even worse – there is no consistency or standard for the use of those instruments that are currently available at CHDC. See generally Matson Tr. 1032:24-1050:23. 449. CHDC does not use a standardized instrument for diagnosing mental illnesses that may be comorbid (i.e., co-extensive) with the individual’s developmental disability. Matson Tr. 1040:9-1042:17. 450. CHDC staff also incorrectly apply the few valid/professionally acceptable tests they actually use. Specifically, CHDC staff wrongly use the same test instruments for various groups at CHDC, notwithstanding that these tests have not been scientifically validated or shown to be “psychometrically sound” (i.e., normed for the characteristics of the group actually being tested) for the particular group. Matson Tr. 1035:10-1040:1 (Slosson test inappropriately used as clinical assessment of intellectual function across populations with varying levels of function),
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1164:19-1165:9 (ICAP inappropriately used for functional assessment), 1099:16-1100:5 (inappropriate use of Slosson test on group of residents with deafness); see also Priest Tr. 6668:21-24 (ICAP used at CHDC only because some State “bureaucrats” thought test would provide a convenient score for determining level of appropriate service). In fact, the Arkansas Department of Education specifically cited CHDC for using the “Slosson” brief intelligence test inappropriately on individuals who are deaf. Matson Tr. 1099:13-1100:3; US Ex. 1203.
4) CHDC’s Unreliable Assessments Generate Unsupportable Psychiatric Diagnoses That Substantially Depart from Professional Standards.
451. CHDC does not base many of the “diagnoses” that form the foundation of CHDC’s psychiatric disorder treatments on scientific or clinically defensible assessments. Matson Tr. 1189:11-19, 1040:9-1050:22 (CHDC does not use validated diagnostic tools, and its substandard methodology for assessing psychopathology results in unsupportable diagnoses and inadequate treatment); US Exs. 553-1 (client census summaries) & 662 (pica list). 452. Rather than using a “rule out diagnosis” that allows a clinician to determine systematically whether a diagnosis is appropriate over time, CHDC uses its own informal procedure, one that often produces ostensibly persistent, but unreliable diagnoses, that then become the basis for inappropriate treatment. Matson Tr. 1040:9-1050:20. Defendants did not provide any example where a diagnosis was clearly identified as “rule out” and then carefully reassessed with further testing and evaluation. See Warren Tr. 4725:7-22 (Defense psychiatrist acknowledging that in field, professionals use the term “rule out” or “provisional diagnosis” but never could not recall seeing these terms used by CHDC’s own staff). 453. Numerous examples of poorly substantiated diagnoses show CHDC’s substandard diagnostic procedures, and raise serious concerns about the appropriateness of CHDC’s psychological and psychiatric interventions. See, e.g., US Exs. 631 (Resident EA – psychotic
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disorder due to microcephaly), 632 (Resident MLA – mental retardation and personality change due to hydrocephalus), 633 (Resident RDA – obsessive compulsiveness in a profoundly retarded resident who lacks the level of cognition necessary to have such a disorder), 634 (Resident WLB – myopia/personality change due to microcephaly), 640-1 (Resident JS combination of obsessive compulsive disorder with both dementia and schizophrenia, which are in many ways incompatible with the former); see also Warren Tr. 4725:4-6 (Defendants’ psychiatric consultant has never himself made a diagnoses of “psychotic disorder due to microcephalus”).
E. CHDC’s Substandard Data Collection Is Unreliable. 454. CHDC psychology staff fail to properly collect and utilize reliable, objective data for assessment, diagnoses, and ultimately treatment. See generally Matson Tr. 1017:21-1020:8 (CHDC does not use recognized scaling methods, scatter plots/graphing, or clear target behaviors), 1021:11-1022:13 (failure to ensure reliable data), 1145:7-1147:5 (lack of graphing and data analysis methods to differentiate behavioral factors), 1056:15-1062:4 (no reliability or treatment fidelity measures), 1064:1-1065:19 (staff use of unreliable, after-the-fact, “data type” numbers and ad hoc data collection forms); Manikam Tr. 3226:13-3227:6 (none of the functional assessments reviewed included necessary data collection, reliability checks and other data analysis); see also Adams Tr. 1805:9-15 (no statistical tools or normalizing performed on data); Cooper Tr. 2428:3-6 (examiner has never heard of data observation sheets used by other staff at CHDC); Warren Tr. 4718:9-25 (trend lines and scatter plots are used by community psychology provider that Defendants’ consultant works with in his own practice); Priest Tr. 6629:8-17, 6630:19-6631:3 (admitting psychology staff limited to essentially a paper review in their oversight of data collection by direct care staff); US Ex. 612 (psychology department e-mail calling for generation of “data type” behavioral numbers issued only in 2009).
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455. Behavior plans should be assessed on their effectiveness and this, in turn, is measured by reference to behavior data. Conversely, at CHDC, only about 18 percent of the behavioral programs include graphs of behavioral data. Manikam Tr. 3152:12-20. Even when CHDC uses graphs, the graphs are typically just simple bar graphs, without even trend lines or other statistical analysis necessary to identify interventions’ effects on, and change to, behaviors. Manikam Tr. 3152:12-3153:12; see also Warren Tr. 4718:9-25 (trend lines and scatter plots used by community psychology service provider in Defendants’ consultant’s own practice). 456. When they do record some data, CHDC staff track and focus on the wrong elements. For example, when assessing the effectiveness of treatment on behaviors, CHDC historically emphasizes tracking incidents of restraint, instead of plotting the core behaviors themselves. Matson Tr. 1067:2-1068:12; US Ex. 682. Restraint use is not an accurate means of tracking individual progress, as restraints can decrease even as behaviors increase. Matson Tr. 1067:21068:12; Manikam Tr. 3152:4-3155:12.
F. CHDC’s Psychology Services Substantially Depart from Generally Accepted Professional Standards Because CHDC Lacks Sufficient Psychology Staff with the Education, Training, and Experience Required for the Treatment of Individuals with Developmental Disabilities.
457. CHDC psychology services fail to meet resident’s needs, because the psychology department’s staff lack the critical education, training, and experience required to provide the type of treatment CHDC residents require. Manikam Tr. 3081:17-3084:10; Matson Tr. 1182:171187:16; see FOF Part VI.F. 458. Generally, the CHDC psychology staff’s education, experience, and training leaves them unprepared to assess and treat individuals with developmental disabilities or the types of behavioral issues found at CHDC. Manikam Tr. 3081:17-3084:10; Matson Tr. 1182:17-1187:16; US Exs. 556, 557, 607, 614; see also Adams Tr. 1765:4-1769:23 (testimony admitting
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examiner’s limited training, experience, and exposure to professional activities); Cooper Tr. 2422:19-2427:22 (same); Priest Tr. 6621:23-6626:21, 6667:1-8 (senior examiner with independent practice privileges unfamiliar with basic terms and admitting limits to training and experience). 459. When providing clinical psychological care, CHDC relies almost entirely on poorly supervised, master’s level practitioners, who in many cases are unfamiliar with basic concepts and terms used in the field of applied behavioral analysis. These master’s level practitioners conduct assessments and behavioral treatment that should normally be handled by doctorate level psychologists, or others with similar, extensive training and experience. Manikam Tr. 3081:173084:10; Matson Tr. 1182:17-1187:16. 460. CHDC’s master’s level practitioners (“psychological” or “psych” “examiners”) lack the education, experience, and training needed to assess and treat the individuals with developmental disabilities with the behavioral issues found at CHDC. Most of the examiners possess a “secondary [psychology] license,” a status that most other states do not recognize. Matson Tr. 1182:17-1187:16; US Exs. 555 through 557, 607 & 614. 461. CHDC does not employ enough qualified psychology staff with doctorate level training. Matson Tr. 1183:18-1190:25; Manikam Tr. 3084:1-10. CHDC employs only one doctorate level psychologist to provide clinical supervision for its psychology department. This supervisor, Chief Psychologist Dr. Carl Reddig, has a doctorate in counseling education. Dr. Reddig does not have the type of education, experience, and training needed to assess and treat individuals with behavioral issues at CHDC. Matson Tr. 1183:18-1190:25; Manikam Tr. 3084:1-10.
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462. American Psychological Association policy states that a person must have a doctorate degree to be a licensed psychologist. Matson Tr. 1184:14-1185:23. Therefore, CHDC “psych examiners” cannot even hold themselves out to the public as “psychologists.” 463. Even under Arkansas’s standards, four of CHDC’s psychological examiners cannot practice independently. Reddig Tr. 2099:9-11, see also Glenn Tr. 6689:11-16 (six CHDC psychological examiners practice independently). 464. Notably, psychology staff at CHDC have little exposure to practices outside of Arkansas. See generally Adams Tr. 1765:4-1769:23; Cooper Tr. 2422:19-2427:22; US Exs. 556, 607 & 614. For a number of the psychology staff, their first, and often only, significant work experience was at CHDC. The Chief Psychologist himself rarely participates in significant professional activities – such as publishing in professional journals or attending national conferences. Reddig Tr. 1942:22-1943:22, 1977:14-20. 465. Residents in a developmental center receive such placement primarily “because of problems in learning.” Matson Tr. 1002:20-1004:6. In an ICF/MR, treatment should therefore focus on resident training. More specifically, treatment for individuals with developmental disabilities should target “issues such as communication training, training in terms of independent living skills,” and training on skills that would help reduce aggression, self-injury, and other challenging behaviors. Professionals generally classify the relevant psychological techniques used to train individuals with developmental disabilities as “operant conditioning” or “applied behavior analysis.” Matson Tr. 1002:23-1004:6. 466. Because of communication and cognitive issues, CHDC residents need to receive training with methods based on applied behavioral analysis. Most of the psychology staff, however, hold degrees in counseling psychology, education, or another field that does not provide sufficient
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background in applied behavioral analysis; nor do such degrees typically include training on developmental disabilities in general. Matson Tr. 1186:15-21; see also Adams Tr. 1767:5-12 (counseling not done as much in current position because of communication issues); Cooper Tr. 2422:24-2423:14 (psychological counseling not normally requested or provided at CHDC). 467. CHDC psychological staff do not have a solid understanding of basic terms and techniques used in applied behavioral analysis and for the treatment of individuals with developmental disabilities. Matson Tr. 1072:6-1084:11 (discussing concepts such as “reliability,” “treatment fidelity,” “reinforcement,” “shaping,” “chaining,” “replacement behaviors,” and the “ABC[’s]” of behaviorism); Manikam Tr. 3221:11-22 (direct interviews of psychology staff showed they do not understand basic terms); see also Adams Tr. 1781:3-1783:5 (CHDC staff do not use or even recognize various behavioral techniques); Cooper Tr. 2432:232433:17 (examiners use no standards to guide identification of reinforcers); Priest Tr. 6621:236626:21, 6667:1-8 (admissions regarding senior psych examiner training and experience); Reddig Tr. 2026:4-2030:15, 2037:2-4 (offering definitions of key concepts that differ from his own staff’s definitions); see generally Appx. (examples of poor behavioral care include residents CA, SA, DB, GB, HB, MB, TB, CC, RLC, RC, TC, JD, KF, BH, KH, PH, JM, BLR, WR, JS, NS, ZS, LW, MW). 468. Dr. Reddig himself admits that not one of his psychological examiners is qualified to do a functional analysis, which, if done in accordance with generally accepted professional standards, serves as an essential foundation for treating an individual’s behavioral issues. Reddig Tr. 2098:12-2099:1; see also Matson Tr. 1007:1-1014:24. 469. Making sure staff actually implement written programs serves as a basic component of any treatment system; yet CHDC does not have these required formal “treatment fidelity”
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measures. Matson Tr. 1060:4-1062:4; see also Reddig Tr. 1991:15-1992:1 (admitting no formal treatment fidelity measures). 470. CHDC direct care staff do not receive adequate “competency training” to ensure that they know how to accurately implement and track behavioral programs. Matson Tr. 1131:5-1132:2; Manikam Tr. 3081:8-16, 3082:4-3083:22; US Exs. 582 & 583. “Competency training,” where staff perform tasks and show understanding, is an essential component for training staff to implement behavioral programs. Manikam Tr. 3081:8-16, 3082:4-3083:22. At CHDC, however, direct care staff basically receive only two weeks of training, and then take a written test. Matson Tr. 1131:14-1132:2; US Exs. 582 & 583. This short, non-competency-based training, is not nearly sufficient to ensure that direct care staff know how to implement behavioral programs. Matson Tr. 1131:5-1132:2; Manikam Tr. 3081:8-16, 3082:4-3083:22; see also Cooper Tr. 2471:12-22 (“floaters” do not receive even multiple choice test). 471. CHDC psychology staff repeatedly made facially dubious statements, such as claiming that their data is a “hundred percent reliable,” “no one was injured as a result of restraints in the facility,” and there is no way to manage out-of-bounds behavior with operant conditioning. Manikam Tr. 3129:25-3132:7; see also US Ex. 691 (broad study noting dangers of using restraints). Such statements show serious gaps in training and experience. 472. Despite repeated notice from the United States and other outside auditors, CHDC psychology staff have not made necessary efforts to self-correct their substandard practices. There are a variety of means of ensuring that psychology staff obtain an adequate “background in applied behavior analysis” including sending staff to other facilities to do a “practicum” for several months or bringing qualified behaviorists to provide training. Manikam Tr. 3220:3-
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3221:10. During the trial, Defendants never introduced evidence indicating that they have even attempted such basic remedial measures. 473. Psychology staff have not conducted any needs assessment to clearly determine the level of staffing necessary to serve individuals of CHDC, where almost 300 residents have dual diagnoses and 171 have significant behavioral issues. See generally Reddig Tr. 2067:19-2072:8 (admitting lack of effort to evaluate or address variety of deficiencies at CHDC).
G. CHDC Does Not Provide Psychology Staff with Adequate Clinical Supervision.
474. CHDC does not provide the level of professional oversight which could mitigate problems with psychology staff qualifications. A single, doctorate level psychologist theoretically oversees the psychology department. In practice, however, the Chief Psychologist provides little clinical oversight. Moreover, the Chief Psychologist himself does not have the level of education, training, and experience required to treat many of the residents. See generally Matson Tr. 1183:1-1187:12 (discussing level of training expected for a psychologist working with CHDC’s population, which would include both extensive course work and relevant clinical experience); see FOF Part VI.F-G. 475. Since June 2004, Dr. Carl Reddig, CHDC’s Chief Psychologist and only doctorate level practitioner, has overseen CHDC’s psychology department. Matson Tr. 1188:16-1190:25; Reddig Tr. 1936:20-1937:24; Adams Tr. 1784:3-7. 476. Dr. Reddig received his educational degree from the education department of a university, not the psychology department, and his background lacks extensive training on applied behavioral analysis or the treatment of individuals with developmental disabilities. See Reddig Tr. 1940:13-18 (no coursework on applied behavioral analysis), 1940:19-1941:1 (only internship was at CHDC).
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477. At the time of his deposition, Dr. Reddig could not identify any reference books or treatises for his field. Reddig Tr. 1977:6-24. 478. Dr. Reddig has not attended any professional conference except one, held by CHDC itself in the last five years. Reddig Tr. 1943:18-22. 479. No one supervises Dr. Reddig clinically. Reddig Tr. 1942:19-21. 480. Dr. Reddig does not typically carry a clinical caseload, so psychological examiners provide nearly all clinical care. See Reddig Tr. 1937:9-15. 481. Dr. Reddig spends only about two to four hours a week in the living units. Reddig Tr. 2015:4-11. This level of doctorate staffing is completely inadequate given the CHDC residents’ needs. Matson Tr. 1183:18-22. 482. Since the psych examiners do not have doctorate degrees required for licensing, they cannot hold themselves out to be psychologists and are instead considered the “primary treating psych examiners.” Reddig Tr. 2018:14-22. At the same time, Dr. Reddig does not consider himself to be the primary treating psychologist for any CHDC resident. Reddig Tr. 2018:14-22. In other words, no CHDC resident has a primary treating psychologist. 483. The Chief Psychologist exercises limited oversight over the examiners, with little actual substantive clinical review of their work. For example, Dr. Reddig does not generally review the cognitive assessments, functional assessment sheets, “strategies,” or behavioral data the psych examiners compile. Reddig Tr. 2014:18-21, 1990:5-16; Adams Tr. 1786:1-18; Cooper Tr. 2447:24-2448:17. One psychology examiner could only recall Dr. Reddig making “typo changes” when he reviews her work. Cooper Tr. 2447:15-23.
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484. Even though every person at CHDC is on his department’s caseload, Dr. Reddig admits he does not actually review every Individual Program Plan - one of the most important treatment documents generated at CHDC. Reddig Tr. 2015:1-3, 1937:18-21. 485. Dr. Reddig does not participate meaningfully in team treatment planning, including IDT’s responsible for reviewing treatment plans, the Human Rights Committee (“HRC”) that reviews restraints and restrictive measures, or the Incident Review Committees (“IRCs”) that are responsible for reviewing behavior reports and incidents. US Ex. 602 (Incident Review Committee membership list); Reddig Tr. 1956:2-3 (no participation in IDTs), 1980:23-1981:9 (no participation in HRC team), 2005:12-2006:18 (no participation in IRCs). 486. Dr. Reddig left CHDC for a few months in 2010, with staff assuming he had left permanently, before returning to his old position. See Adams Tr. 1784:3-1785:25; Cooper Tr. 2444:10-2445:20; Reddig Tr. 1937:25-1938:18. 487. During this period when the Chief Psychologist position was apparently vacant, Dr. Wyrick served as acting clinical supervisor, though he was based at the Booneville Human Development Center, and testifying psychology examiners only saw him one to three times during the entire period he was acting as Chief Psychologist. Adams Tr. 1784:3-1785:25; Cooper Tr. 2444:10-2445:20. While he was clinical director, the staff were even more poorly supervised than when Dr. Reddig was serving as Chief Psychologist. See Adams Tr. 1784:31785:25; Cooper Tr. 2444:10-2445:20. 488. CHDC does not have important standardized procedures, rendering quality assurance, clinical oversight, and data comparisons unreliable. Numerous examples of this serious deficiency exist, such as a lack of consistency in the use of basic terms and a general absence of formal training and quality assurance mechanisms. Cooper Tr. 2452:4-8 (no standard definition
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of “physical injury”); Matson Tr. 1025:10-1027:10 (problematic definition of “aggression”); see Reddig Tr. 1950:21-1952-23, 1953:5-1955:3 (Chief Psychologist plays little role in overseeing compliance with various CHDC policies), 2000:9-16 (no formal mechanism to ensure staff compliance with written safety plans, i.e., “treatment fidelity”), 1992:2-1994:3, 2002:16-2003:25 (data collection process relies largely on discretion of low level staff when filling out behavior reports and similar documents), 2008:5-16 (no formal staff training on how to report antecedent conditions), 2014:1-10 (Chief Psychologist does not train staff on restraint use), 2009:4-2011:16 (no formal quality assurance system to monitor psychology and direct care staff), 2017:11-19 (Chief Psychologist not familiar with facility injury tracking process); US Exs. 558 (CHDC psychology policies), 594 (behavior emergency procedures form) & 622-1(CHDC restraint policies).
VII. CONCLUSIONS OF LAW – PSYCHOLOGY AND BEHAVIORAL SERVICES Defendants harm CHDC residents with psychology and behavioral services that violate
residents’ federal rights to freedom from unreasonable restraints, protection from serious harm, and psychological treatment in the most integrated setting appropriate to their individual needs. Youngberg, 457 U.S. at 315-18; see also Part III, supra. CHDC’s psychology and behavioral services fail to provide psychological services necessary to meet the minimum treatment and habilitation needs of CHDC residents.
A. CHDC’s Psychological and Behavioral Services Violate Residents’ Constitutional Right to Habilitation and Treatment.
Defendants harm residents with substandard psychological and behavioral services that unlawfully rely on unqualified staff who fail to professionally assess and treat CHDC residents in order to meet their minimum psychological and behavioral needs. CHDC’s substandard
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treatment of residents so substantially departs from generally accepted professional standards, that the CHDC psychological and behavioral management program violates the Constitution.1 Youngberg, 457 U.S. at 323; see also Part III, supra (discussing federal statutory right to treatment in most integrated setting).
First, CHDC does not have sufficient professional staff, qualified by training, education, or experience, to provide psychological and behavioral services at CDHC. Youngberg, 457 U.S. at 323 n.30. Instead, CHDC relies heavily on inadequately trained psychology “examiners” and direct care staff to develop, implement, and monitor programs that require a higher level of skilled practitioner to meet generally accepted professional standards. No one disputes that these staff are treating CHDC residents with often complicated conditions requiring specialized care. The Supreme Court has clearly required, however, that treating professionals must possess the qualifications necessary to provide the care for which they are responsible. Id. Simply meeting state licensing standards should not be considered automatically sufficient under federal law, especially in a case involving the United States’ direct enforcement of individuals’ federal rights. Here, CHDC psychology examiners lack the education and experience required to utilize behavioral management alternatives to restraints. Adequate treatment for individuals with developmental disabilities requires the use of specialized techniques, whose effectiveness is

1

Professional decisions about a resident’s services must be based upon the

individuals’ needs, not available services or administrative convenience. See Ohlinger v.

Watson, 652 F.2d 775, 779 (9th Cir. 1981) (“Lack of funds, staff or facilities cannot justify the

State’s failure to provide appellants with that treatment necessary for rehabilitation.”); see also

Thomas S. v. Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988) (“Professional judgment

probably was not exercised if it was modified to conform to available treatment rather than

appropriate treatment.”) (internal citation omitted); Lelsz v. Kavanagh, 629 F. Supp. 1487, 1495

(N.D. Tex. 1986) (“Evidence that the professional judgment was made to conform to what was

available may indicate that the judgment was a substantial departure from accepted professional

judgment, practice or standards.”) (internal quotations omitted).

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supported by bodies of research. CHDC staff lack training and familiarity with these techniques and supporting research. The implementation of these techniques requires understanding of underlying concepts and terms of art. Unfortunately, admissions and case examples repeatedly demonstrate that CHDC examiners lack the necessary understanding for many of the terms and concepts that they are supposedly using to manage challenging behaviors. Additionally, CHDC allows some examiners, who cannot practice independently even under state law, to operate with no effective clinical supervision. CHDC employs only one doctorate level practitioner in the entire psychology department, and given the number of residents needing treatment, this level of clinical oversight is facially problematic. Moreover, the only doctorate practitioner at CHDC is himself unfamiliar with many of the basic concepts and tools professionals use in the field. His review of clinical treatment is mostly a paper review, not a clinical one. Defendants cannot claim to be meeting the Youngberg “professional judgment” standard when they literally do not employ enough qualified professionals to make such judgments. By themselves, CHDC’s staffing and supervision deficiencies prove that the Defendants cannot be meeting their obligation to provide constitutional treatment.
Second, CHDC psychological and behavioral services violate the Constitution because staff regularly fail to conduct appropriate assessments and diagnoses of individuals in their care. Youngberg, 457 U.S. at 318-23. The Defendants do not meet constitutional standards just because a person with a license made a decision. To satisfy the standard, the decision must actually reflect “professional judgment,” a legal term of art. Id. at 322-23. At minimum, evidence must show that such professional judgment was indeed exercised. Id. This standard is not met when a professional’s decision substantially departs from generally accepted standards or practice. Id.; see also Thomas S., 902 F.2d 250, 252-53 (4th Cir. 1990) (treating
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professional’s decision not conclusive in determining whether professional judgment was indeed exercised).
The routine use of idiosyncratic forms and assessment methods, that the Defendants’ own staff admit have no proven scientific validity, is among the ways that CHDC staff’s decisionmaking substantially departs from professional standards. Staff do not use, or are not even aware of, a host of scientifically validated instruments utilized by professionals in their field. When CHDC’s idiosyncratic assessments occur, they are completed on a fixed schedule, rather than in response to observed changes in condition. The psychology staff take months to reassess and adjust treatment. As a result of CHDC’s seriously flawed assessment process, many CHDC assessments of residents’ cognition, adaptive function, psychopathology, pain, behaviors, and even physical condition, are seriously flawed.
Similarly, CHDC data collection and analysis, which is a foundation for assessment and treatment, substantially departs from professional standards. At CHDC, psychology staff do not understand some of the most basic concepts and techniques used by behaviorists to properly measure and evaluate target behaviors. This data issue is particularly problematic, because psychology staff serve as a linchpin for CHDC’s facility-wide data collection and analysis process. The treatment teams and consulting professionals, such as CHDC’s physicians and psychiatrist, use examiner data for making major changes in treatment.
In other words, even if the psychology staff meet minimum professional qualifications, their failure to establish the foundations for treatment using appropriate assessment instruments, forms, and data collection techniques, means that CHDC psychology services substantially depart from generally accepted professional standards. Without proper assessments, the staff cannot exercise “professional judgment” in an adequate, legal sense.
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Third, CHDC’s psychological and behavioral services substantially depart from generally accepted professional standards, because psychology staff fail to develop, implement, monitor, and update appropriate behavioral treatment plans to address the residents’ serious needs. Youngberg, 457 U.S. at 315-23. Without effective treatment programs, staff rely on inappropriate restraints and other unsafe interventions. Staff take months to develop and implement treatment plans, which is simply too long given the dynamic environment at CHDC and the residents’ changing needs. Additionally, once a plan is developed, CHDC has no effective procedures in place to ensure treatment fidelity, i.e., procedures to ensure that staff are actually implementing plans in a consistent, organized fashion. Different and inconsistent interventions appear in a variety of documents in an individual’s file, and staff training is not “competency”-based. The lack of up-to-date, effective treatment plans, that are implemented with fidelity, leads to unnecessary restraint and means that residents are not learning skills that promote independence.
As a result of these deficiencies in CHDC’s psychological services, CHDC continues to fail to address residents’ conditions, which allows residents to repeatedly harm themselves or others. CHDC’s deficiencies go well beyond a simple disagreement between qualified professionals about diagnosis, assessment, or treatment. CHDC staff literally do not, and cannot, provide the minimum level of psychological treatment the Constitution requires.
B. CHDC Harms Residents with Unlawful Restraints That Violate the Fourteenth Amendment.
CHDC’s restraint of residents as a “first option” violates the Constitution, causing residents psychological and physical harm. Professional standards require that treatment staff use seclusion and restraint as a last resort, only when an individual represents a danger to himself or others. See Youngberg, 457 U.S. at 316-18; Society for Good Will to Retarded Children, Inc.
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v. Cuomo, 737 F.2d 1239, 1245 (2d Cir. 1984) (holding that all patients of mental health institutions have a right to freedom from undue bodily restraint); Thomas S., 699 F. Supp. at 1189 (“Seclusion and restraint should only be used as a last resort.”). CHDC’s routine reliance on inappropriate restrictive measures, rather than on less intrusive and less restrictive applied behavioral techniques – such as teaching alternative communication strategies and developing effective reinforcement programs – violates the Fourteenth Amendment. Youngberg, 457 U.S. at 315-19; Thomas S., 699 F. Supp. at 1189 (“It is a substantial departure from professional standards to rely routinely on seclusion and restraint rather than systematic behavior techniques such as social reinforcement to control aggressive behavior.”).
CHDC’s overreliance on restraints causes psychological and physical harm, as well as an ongoing serious risk of harm to the individuals CHDC subjects to these substandard restraints. See, e.g., Nat’l Ass’n of Psychiatric Health Systems v. Shalala, 120 F. Supp. 2d 33, 45 (D.D.C. 2000) (“[S]evere psychological and physical injuries . . . can and do result from inappropriate use of restraints.”). Such resident harm includes both the direct harm that residents incur from the actual restraint, as well as the harm that results from inadequately treated psychological conditions.
Federal regulations and statutes provide guidance on contemporary standards in this area. Federal regulations emphasize that restraints should be used only if “necessary,” which means used only at a minimum, and expressly prohibit the use of restraints as a substitute for “active treatment.” See 42 C.F.R. §§ 483.420(a)(6) & 483.450(b)(3). “Active treatment” requires that the State ensure that its treatment for individuals with developmental disabilities includes “aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services . . . that is directed toward (i) The acquisition of
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the behaviors necessary for the [individual] to function with as much self determination and independence as possible; and (ii) The prevention or deceleration of regression or loss of current optimal functional status.” 42 C.F.R. § 483.440(a). Yet CHDC’s psychology program lacks even the basic components of a standard clinical treatment process, let alone providing anything resembling “active treatment.”
In place of adequate habilitation and treatment to protect residents from harm, CHDC staff routinely and illegally utilize unnecessary, unsafe, and inappropriate mechanical and chemical restraints. See Thomas S., 699 F. Supp. at 1189; 42 C.F.R. § 483.450. Both the types of restraints used, and the frequency of their use, violate constitutional limits. See Thomas S., 699 F. Supp. at 1189; 42 C.F.R. §§ 483.420(a)(6) & 483.450(b)(3). CHDC employs a number of particularly egregious practices, including widespread use of the archaic papoose board and routine application of unnecessary restraints on children. CHDC’s excessive use of mechanical restraints, again especially on children, has little, if any, support in either professional practice or the literature. Indeed, many states have prohibited their use on children. Defendants have exacerbated this unconstitutional harm by failing to adopt important safeguards on restraint use, such as conducting thorough, post-incident, clinical reviews. Some CHDC practices, such as personal holds and “separation to allow calming,” lack even the attention and monitoring given to mechanical restraints.
Without substantial improvements in CHDC’s unlawfully deficient psychological services, Arkansas will continue to unnecessarily institutionalize, segregate, restrain, and otherwise harm individuals with developmental disabilities. Defendants’ continued failure to make even minimal modifications to existing psychological and behavioral treatment programs, such as providing relevant applied behavioral services, providing more communication
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TABLE OF CONTENTS – PSYCHIATRY AND MEDICAL CARE
VIII. FINDINGS OF FACT – PSYCHIATRY .................................................................... 168
A. Drs. Holloway and Mikkelsen Provided Credible Expert Testimony Detailing CHDC’s Substandard Psychiatry Services. .............................................................. 168
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Needless Exposure to Harmful Side Effects of Psychotropic Medications.............. 173
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Clinically Deficient Diagnoses That Are Used To Justify the Administration of Psychotropic Medications......................................................................................... 182
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Harmful Medication Practices. ................................................................................. 189 1) CHDC’s Clinically Unjustified Selection of Medication ............................. 190 2) Clinically Unjustified Medication Usage...................................................... 193
E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Clinically Deficient Assessments of Medication Efficacy. ...................................... 198
F. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Delayed Psychiatric Assessments. ............................................................................ 200 1) CHDC’s Substandard Delays in Seeing Individuals After Admission ......... 201 2) Clinically Inadequate Psychiatric Oversight................................................. 203 3) CHDC’s Insufficient Availability of Psychiatric Services ........................... 207
G. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from CHDC’s Failure To Provide Its Consulting Psychiatrist with Sufficient Training and Oversight. ........................................................................................................... 208
H. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Lack of Coordination and Communication Regarding Psychiatric Care........................... 211
IX. CONCLUSIONS OF LAW – PSYCHIATRY............................................................ 215
X. FINDINGS OF FACT – MEDICAL CARE ............................................................... 217
A. CHDC Inappropriately Relies on Untrained Direct Care Staff To Identify Changes in Health Status. ......................................................................................... 217
B. CHDC Exercises Insufficient Clinical Oversight. .................................................... 218 C. CHDC’s Bad Clinical Outcomes Confirm Its Deficiencies in Medical Care. .......... 220
XI. CONCLUSIONS OF LAW – MEDICAL CARE ...................................................... 221
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VIII. FINDINGS OF FACT – PSYCHIATRY 489. CHDC’s psychiatric services systemically and seriously deviate from generally accepted professional standards of care, with fatal or near fatal consequences. Mikkelsen Tr. 3573:22-21; Holloway Tr. 2620:17-2621:3. CHDC’s failure to provide routine and emergency psychiatric services substantially departs from generally accepted professional practices. Holloway Tr. 2621:10-13; see FOF ## 504-637.
490. CHDC harms residents through subjecting them to psychiatric care that substantially departs from generally accepted minimum professional standards in several elements of psychiatric care. Specifically, CHDC harms residents by: needlessly exposing them to psychotropic medications with serious and dangerous side effects; using clinically deficient diagnoses to justify the unwarranted use of medications; engaging in unjustified medication practices (including prescribing medications to suppress another medication’s side effects, in response to non-psychiatric environmental behaviors, and as chemical restraints); providing clinically deficient assessments of medication efficacy; providing untimely psychiatric assessments and follow up care; and failing to provide adequate clinical oversight, training, and support to CHDC’s psychiatrist. See FOF ## 504-637.
A. Drs. Holloway and Mikkelsen Provided Credible Expert Testimony Detailing CHDC’s Substandard Psychiatry Services.
491. Dr. Holloway has provided extensive psychiatric treatment to individuals with developmental disabilities in institutional settings for the last 18 years. Holloway Tr. 2485:242486:3; US Ex. 866. Dr. Holloway currently works as statewide psychiatric consultant to the State of Louisiana Department of Health and Hospitals Office for Citizens with Developmental
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Disabilities. Holloway Tr. 2483:19-2484:3; US Ex. 866. Working at two developmental centers in Louisiana, Dr. Holloway trains psychiatric residents and medical students in the provision of psychiatric care to individuals with developmental disabilities. Holloway Tr. 2486:9-25; US Ex. 866.
492. Dr. Holloway is triple-board certified in psychiatry, child psychiatry, and forensic psychiatry. Holloway Tr. 2484:24-25; US Ex. 866. In 2009, Dr. Holloway successfully underwent board recertification in psychiatry in the law. Holloway Tr. 2488:21-23. She is an active member of many medical, psychiatric, and developmental disability associations. Holloway Tr. 2485:4-8; US Ex. 866.
493. Dr. Holloway has advised two states, Louisiana and Tennessee, regarding the psychiatric standards of care for individuals with developmental disabilities who live in residential training facilities. Holloway Tr. 2487:4-9, 2619:6-2620:13; US Ex. 866.
494. Dr. Holloway’s review of CHDC consisted of: looking for policies and procedures regarding the provision of psychiatric care and interviewing CHDC staff involved in residents’ psychiatric care (including the consulting psychiatrist, pharmacists, and some psychologists). Holloway Tr. 2499:16-2500:9. Dr. Holloway also selected and reviewed CHDC’s psychiatric care for a reasonable sample of residents with a wide range of psychiatric needs. Holloway Tr. 2501:2-2502:2. In doing so, Dr. Holloway used the same methods of review that she has used in evaluating care as a consultant for the States of Louisiana and Tennessee. Holloway Tr. 2503:23-25.
495. Dr. Holloway based her assessment of, and conclusions regarding, CHDC’s psychiatric care on the generally accepted professional standards on which she was trained when obtaining
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three psychiatric board certifications; her career-long, extensive experience providing psychiatric care and designing care for individuals with developmental disabilities in institutions who are comparable to CHDC residents; and information obtained from medical academies, literature, peer-reviewed journals, textbooks, the psychiatry in the law recertification she recently underwent, formal residency rotation guidelines, evidence-based practices, peer review to which her clinical work recently has been subjected, and other sources. Holloway Tr. 2488:7-2489:17. 496. Dr. Mikkelsen is an adult and child psychiatrist who has been providing psychiatric services to individuals with developmental disabilities for 32 years. Mikkelsen Tr. 3562:25, 3567:18-22; US Ex. 751. Dr. Mikkelsen’s particular expertise is the treatment of individuals with intellectual disabilities who have co-occurring psychiatric illnesses requiring pharmacological treatment. Mikkelsen Tr. 3564:23-3565:2, 3572:15-18. 497. Currently, Dr. Mikkelsen provides consultation services to the regional centers for the Massachusetts Department of Developmental Services that provide institutional care to individuals with developmental disabilities. These consultations involve specialized psychopharmacological questions for individuals with involved psychiatric problems or assessments of dangerousness and forensic assessments. Mikkelsen Tr. 3563:1-10; US Ex. 751. Dr. Mikkelsen also consults for the MENTOR network, a national provider of community residential services for persons with developmental disabilities. Mikkelsen Tr. 3563:10-16; US Ex. 751. Dr. Mikkelsen also offers second opinion consults on difficult psychiatric cases from various states. Mikkelsen Tr. 3565:13-17.
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498. After medical school, inter alia, Dr. Mikkelson trained for two years in child psychiatry, which included a focus on individuals with autism spectrum disorders and pervasive developmental disorders. Mikkelsen Tr. 3565:19-3566:11; US Ex. 751.
499. Dr. Mikkelsen is board certified in adult psychiatry and child psychiatry. Mikkelsen Tr. 3566:13-15; US Ex. 751. Since 1980, Dr. Mikkelsen has served as an examiner in either the adult or child psychiatry board exams. Mikkelsen Tr. 3569:4-3570:8.
500. Following the completion of Dr. Mikkelsen’s residency at the Yale Child Study Center, he founded an inpatient child psychiatry unit in a hospital in southern New Hampshire, served as the head of Child Psychiatry at the Massachusetts Mental Health Center, and helped initiate a postgraduate training program for the Harvard Medical School in treating psychiatric illnesses in persons with intellectual and other developmental disabilities. Mikkelsen Tr. 3567:23-3569:3. Dr. Mikkelsen has lectured both nationally and internationally, and has written over 100 professional publications and three books. Mikkelsen Tr. 3572:8-13; US Ex. 751. He is a member of the National Association for the Dually Diagnosed, the American College of Psychiatrists, and a distinguished fellow in the American Psychiatric Association (“APA”). He won the APA’s Frank Menolascino Award for making significant contributions to the field of psychiatric care of individuals with developmental disabilities. Mikkelsen Tr. 3570:9-21, 3571:12-24; US Ex. 751.
501. Dr. Mikkelsen applied the generally accepted professional clinical standards he was taught at the Mayo Clinic, NIMH, Yale, and Harvard; the standards he has taught others; and the standards he has used clinically and that have been subject to outside peer review and evidencebased verification. Mikkelsen Tr. 3574:22-3575:5. Dr. Mikkelsen published a book in 2007,
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The Rational Use of Psychotropic Medication in Individuals with Developmental Disabilities, that was peer-reviewed and outlines these generally accepted principles of psychiatric treatment. Mikkelsen Tr. 3575:8-3577:1.
502. In conducting his review of CHDC, Dr. Mikkelsen conducted two week-long tours of the facility approximately four weeks apart in summer 2009. During these tours, he interviewed, among others, CHDC’s consulting psychiatrist, Dr. Callahan; CHDC’s medical director; CHDC’s director of psychology; a CHDC psychology staff member; and CHDC’s on-call physician, Dr. Garry Stewart. Mikkelsen Tr. 3577:11-22. He also reviewed records, on-site and off-site, and visited facility living units. Mikkelsen Tr. 3577:22-3578:3.
503. The starting point for Dr. Mikkelsen’s selection for his review of individuals’ records was a spreadsheet provided by the Defendants identifying: CHDC residents by name in alphabetical order, whether the medications they were receiving are prescribed for behavioral purposes, their psychiatric diagnosis, and the individual’s team. Mikkelsen Tr. 3580:4-3581:9; US Ex. 754-2. Dr. Mikkelsen identified and reviewed the records both of individuals who were low-utilizers of psychotropic medication and individuals who were receiving more psychotropic medications. Dr. Mikkelsen also looked at charts of individuals who had multiple psychiatric diagnoses and those who had psychiatric diagnoses that were unfamiliar to him or did not seem to fit other aspects of the individual’s presentation. Mikkelsen Tr. 3581:7-21. This is a common approach to conducting reviews of psychiatric services in a facility such as CHDC. Mikkelsen Tr. 3583:9-15. Dr. Mikkelsen also reviewed records of individuals who died. Mikkelsen Tr. 3583:5-8. Dr. Mikkelsen reviewed approximately 75 charts in reaching his conclusions.
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Mikkelsen Tr. 3596:17-22. This is approximately 20 percent of the caseload of persons receiving psychiatric care at CHDC. Mikkelsen Tr. 3597:12-15.
B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Needless Exposure to Harmful Side Effects of Psychotropic Medications.
504. Nearly 300 of CHDC’s approximately 500 residents receive psychotropic medications, and approximately half of those receiving psychotropic medications receive multiple psychotropic medications. Mikkelsen Tr. 3584:16-19.
505. CHDC residents have died and nearly died because of CHDC’s systematic failure to avoid, detect, and mitigate common side effects of psychotropic medications. CHDC’s failure to maintain an adequate system for detecting, monitoring, reporting, responding to, and documenting medication side effects, substantially departs from generally accepted minimum practices. Holloway Tr. 2621:19-23; see FOF ## 506-534.
506. Psychotropic medications can have serious and extensive harmful side effects, including death, diabetes mellitus, heart abnormalities, and permanent neurological damage. Holloway Tr. 2495:20-2498:3. Psychotropic medications are “notorious” for their side effects. Holloway Tr. 2537:17-2538:3. Defendants’ consultant Dr. Kastner acknowledged that “all psychotropic medications are harmful.” Kastner Tr. 4543:11-16. Further, psychotropic medications pose significantly heightened risks for individuals with developmental disabilities. Dr. Eldon Schulz, medical director for the Arkansas Division of Developmental Disabilities, testified that, while the typical child with ADHD may have intolerable side effects in about a range of 3 to 5 percent, an individual with an intellectual status below an IQ of 70 will experience a rate of side effects that goes up to 30 percent, a 10-fold increase. Schulz Tr. 6191:20-6192:3.
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507. CHDC staff fail to identify even the most prevalent side effects from medications. The inability of CHDC’s staff to assess such side effects is an obvious deficiency in care. Mikkelsen Tr. 3679:5-9.
508. CHDC’s failure to detect side effects or toxic levels of medications has harmed CHDC residents. Mikkelsen Tr. 3659:5-8. In particular, CHDC residents, such as CJ, have died, and others, such as CHL, have nearly died, because of CHDC’s failure to properly monitor and respond to psychotropic medication side effects. Numerous other CHDC residents are experiencing significant side effects of these medications that CHDC either fails to detect or misdiagnoses and improperly addresses. See FOF ## 509-512, 524-527.
509. For example, CHDC gave Resident CJ the psychotropic medication Haldol for the express purpose of suppressing agitation she was experiencing as a result of a seizure medication, Keppra. No evidence showed that, before administering the Haldol to CJ, CHDC made any effort to change or reduce her seizure medications, even though numerous medications can effectively control seizures without causing agitation. Further, CJ did not even have a definitive diagnosis of seizures. As a result of CHDC’s prescription of Haldol to CJ, she contracted a preventable disorder, neuroleptic malignant syndrome, which CHDC did not detect, and caused CJ to die. Appx. at 2-5.
510. CHL, a small boy, developed lithium toxicity from medications that CHDC administered to him. His level of lithium toxicity was so high at one point that laboratory equipment could not measure it. CHDC did not detect CHL’s lithium toxicity until he was staggering and nearly comatose, although he was showing signs of toxicity weeks earlier. Even when CHL was staggering and nearly comatose, and CHL’s lithium level was immeasurably high, CHDC waited
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a day to hospitalize him. CHL ultimately had to be airlifted to Arkansas Children’s Hospital and subjected to multiple rounds of dialysis to treat the toxic levels of lithium in his body. Appx. at 5-8. Even Defendants’ consultant, Dr. Kraus, testified that he would have immediately hospitalized CHL upon receipt of the high lithium reading and that he had unanswered questions about CHL’s care. Kraus Tr. 6386:15-18.
511. CHDC has not undertaken any measures to prevent similar episodes of medication overdoses since CHL was hospitalized for lithium toxicity. Mikkelsen Tr. 3681:14-17.
512. Nor does CHL represent an isolated incident. Since CHL had to be hospitalized for lithium toxicity, another CHDC resident, BH, was hospitalized with lithium toxicity. Mikkelsen Tr. 3681:18-3682:15. According to CHDC records, five CHDC residents have been diagnosed with lithium toxicity. Mikkelsen Tr. 3688:21-3689:13; US Ex. 587.
513. Having individuals reach this level of lithium toxicity is extremely rare. Defendants’ consultant, Dr. Kraus, admitted that he could not recall any individual whom he had treated in his practice at Rush University Medical Center in Chicago who required hospitalization because of lithium toxicity. Kraus Tr. 6341:22-6342:1.
514. Similarly, Dr. Kraus, admitted he was unaware of any instance in the past two years among his fellow practitioners in Chicago, all of whom commonly prescribe lithium, of an individual requiring hospitalization from lithium toxicity. Kraus Tr. 6342:2-15. Dr. Kraus testified that he is commonly notified of adverse drug reactions like lithium toxicity occurring in the Chicago area and likely would have been notified if a hospitalization from lithium toxicity occurred there. Kraus Tr. 6342:9-12.
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515. Because of CHDC’s substandard medication practices, numerous other CHDC residents are experiencing significant side effects of psychotropic medications. Holloway Tr. 2601:14-17. For example, records for ACJ indicate that she is experiencing behaviors consistent with medication side effects. Dr. Holloway summarized these as “[a]ppearing overly sleepy, unresponsive, lethargic, confused and disoriented, appearing unusually unsteady and shaky, possible accident, minor injury, falling,” and “swelling on her face, inability to void.” Holloway Tr. 2602:3-13; US Ex. 877-2.
516. Psychotropic medications cause abnormal motor movements. Holloway Tr. 2497:252498:1. Consequently, generally accepted minimum professional standards require CHDC to monitor side effects with objective measures normed to its population. Holloway Tr. 2498:3-8. These include monitoring for akathesia, which is motor restlessness that psychotropic agents can contribute to, and causes significant distress. Holloway Tr. 2498:16-24.
517. CHDC is not adequately identifying individuals with tardive dyskinesia. Holloway Tr. 2607:17-20. Tardive dyskinesia is a psychotropic medication side effect involving abnormal motor movements. Tardive dyskinesia can cause swallowing difficulties, and can affect the limbs and feet. Holloway Tr. 2602:25-2603:4. Variants of tardive dyskinesia include akathesia and tardive dystonia, which is a tightening and twisting of muscle groups. Holloway Tr. 2603:48. Tardive dyskinesia, including these and other subtypes, is usually an irreversible condition. Holloway Tr. 2603:12-13.
518. Certain classes of psychotropic medication typically cause tardive dyskinesia. Holloway Tr. 2603:16-21. Studies indicate that approximately 17 to 25 percent of persons exposed to longterm use of psychotropic medications develop tardive dyskinesia. Holloway Tr. 2603:22-2604:5.
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519. CHDC has exposed multiple CHDC residents to numerous years of psychotropic medications, especially to first-generation antipsychotics. Holloway Tr. 2604:6-20.
520. Reglan, which is used to treat gastrointestinal disturbance, can contribute to tardive dyskinesia. Holloway Tr. 2605:2-5. CHDC prescribes Reglan to approximately 51 CHDC residents. Holloway Tr. 2605:7-10.
521. Extrapyramidal symptoms (i.e., long-term abnormal motor movements, Holloway Tr. 2593:4-13) are associated with a disorder of the central nervous system and manifest themselves in different ways, including abnormal oral movements, jaw movements, upper extremity movements, drooling, gait change, and finger movements resembling pill rolling. Holloway Tr. 2605:22-2606:14.
522. CHDC limits its medication side effect monitoring to the use of the Abnormal Involuntary Movement Scale (“AIMS”). Holloway Tr. 2595:13-15, 2600:12-14; Mikkelsen Tr. 3657:8-20. The AIMS only identifies dyskinesia (i.e., medication-induced involuntary motor movement). Holloway Tr. 2601:2, 2497:24-2498:3. The AIMS does not capture other serious side effects, such as akathisia or tremors. Holloway Tr. 2595:16-19, 2601:2-4; Mikkelsen Tr. 3657:23-3658:7. Other instruments, such as the MOSES, provide a more comprehensive assessment of side effects. Mikkelsen Tr. 3658:13-19. The AIMS, by itself, is not adequate to assess the side effects of psychotropic medications. Holloway Tr. 2600:21-24.
523. CHDC has identified only eight residents as having either tardive dyskinesia or extrapyramidal symptoms. Holloway Tr. 2605:11-2606:17; US Ex. 874. This list undercounts the number of CHDC residents with a history of tardive dyskinesia or extrapyramidal symptoms. Eight residents is low compared to national statistics regarding rates of tardive dyskinesia or
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other extrapyramidal symptoms among individuals who have experienced long-term exposure to psychotropic medications. National statistics indicate that at least 25 percent of such individuals experience such symptoms. Holloway Tr. 2606:18-2607:7. Further, CHDC residents manifesting signs and symptoms of tardive dyskinesia and extrapyramidal symptoms were not included on CHDC’s list of individuals experiencing tardive dyskinesia or extrapyramidal symptoms. Holloway Tr. 2607:7-16.
524. Even when CHDC staff do identify potential medication side effects, they fail to followup. For instance, CHDC resident BH’s psychiatric consultation in May 2009 notes that, according to an AIMS screen, BH has experienced “some involuntary movements with regard to both arms and facial muscles and lip/perioral area. He engages in fairly frequent stereotypical movements of his arms.” Holloway Tr. 2607:21-2608:24. These movements are consistent with extrapyramidal symptoms. Holloway Tr. 2609:10-13. Yet, CHDC has not identified BH as having extrapyramidal symptoms. US Ex. 874. After noting that BH is exhibiting possible extrapyramidal symptoms, CHDC’s consulting psychiatrist did not advise BH’s treatment team to monitor for these movements. Holloway Tr. 2609:17-24. CHDC’s consulting psychiatrist also did not explore whether BH’s agitation and aggression result from akathesia, which is an extrapyramidal symptom. Holloway Tr. 2609:19-23, 2613:24-2614:3.
525. CHDC’s consulting psychiatrist regularly raises medication dosages even while noting the presence of associated side effects. Holloway Tr. 2587:12-19. For instance, although CHDC’s consulting psychiatrist noted in May 2009 that BH was experiencing symptoms that are consistent with extrapyramidal symptoms, in July 2009, the psychiatrist concluded that BH was having “no known side effects” from his medications. Holloway Tr. 2607:21-2608:24, 2612:14-
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16; US Ex. 880-2. CHDC’s consulting psychiatrist made no apparent effort to account for the fact that psychotropic medications prescribed for BH have irreversible side effects and can also suppress symptoms of any side effects. Holloway Tr. 2612:17-2613:10. Instead, he raised the level of BH’s medication. Holloway Tr. 2613:11-16.
526. CHDC increased BH’s psychotropic medications in response to the frequency of BH’s behavior reports. Holloway Tr. 2613:17-20. This is especially concerning, because BH has a history of neuroleptic malignant syndrome. Neuroleptic malignant syndrome can cause death, and is caused by the neuroleptic medication that CHDC was administering to BH. Holloway Tr. 2613:17-20. CHDC increased BH’s psychotropic medications without regard to the potential side effects in contrast to generally accepted professional standards. Holloway Tr. 2613:21-23.
527. The consulting psychiatrist’s consultation notes of July 2, 2009 for CHDC resident AMB indicate that AMB had “small areas on her forehead, chin, and right side of her face, that she’s probably engaged in some skin-picking behavior. She had some infrequent tic-type movements of her eyebrows.” Yet, again, the consulting psychiatrist did not carefully assess the possibility of medication side effects. Instead, the consulting psychiatrist’s note uses largely the same generic language found in other resident examples - AMB is “having no known current side effects from her psychotropic medication, with the possible exception of some intermittently present abnormal facial movements noted on her AIMS from 2/14/09.” Holloway Tr. 2616:3-19; US Ex. 882. Although CHDC’s consulting psychiatrist documented the results from CHDC's AIMS screening in his own notes, CHDC failed to identify AMB as having tardive dyskinesia or extrapyramidal symptoms. Holloway Tr. 2616:24-2617:3; US Ex. 874. CHDC’s March 10, 2009 problem list for AMB identifies several medical issues consistent with medication side
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effects, such as duodenal ulcers, constipation, hyperlipidemia, hypothyroidism, esophagitis, gastritis, silent aspiration, and cataracts. Holloway Tr. 2617:4-25; US Ex. 883. Yet, AMB’s record contains no indications that CHDC staff assessed any of these conditions as possible medication side effects. Holloway Tr. 2618:1-15.
528. CHDC’s consulting psychiatrist admitted that he typically does not even identify the side effects of the treatments he proposes. Callahan Tr. 5371:22-5372:12. Even in the rare instances where CHDC’s psychiatrist does identify possible side effects, he does not communicate them adequately to other treating staff, denying them of information they need to monitor and address the side effects. A psychiatrist must educate staff about what particular side effects to look for, monitor residents whom he is treating, and instruct staff on how to address such side effects. Holloway Tr. 2523:23-2524:24. But at CHDC, the consulting psychiatrist does not take these steps necessary to ensure residents’ safety. Mikkelsen Tr. 3625:7-9.
529. Similarly, CHDC’s consulting psychiatrist does not complete Adverse Drug Reaction reports or otherwise notify the CHDC Pharmacy and Therapeutics Committee or other entities of potential adverse drug reactions or medication side effects experienced by the residents for whom he provides psychiatric services. Holloway Tr. 2523:14-22, 2587:20-2588:5.
530. The consulting psychiatrist is not a member of the Pharmacy and Therapeutics Committee or on any committee in regards to monitoring medications, or in any way involved in medication monitoring. Holloway Tr. 2590:19-2591:11. The consulting psychiatrist is not aware of the content of CHDC’s medication monitoring protocols or even where the protocols are located. Holloway Tr. 2591:12-22; Mikkelsen Tr. 3649:21-3650:2.
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531. CHDC does not have a facility-wide system of detecting, reporting, and responding to harmful medication side effects. Holloway Tr. 2592:4-13, 2595:9-12, 2600:15-17; Mikkelsen Tr. 3658:20-25. CHDC does not have a systemic approach for tracking and trending harmful outcomes that result from medication side effects. Holloway Tr. 2600:18-20.
532. CHDC’s medical director knows little about CHDC’s medication side effect control system. She admitted that she: (1) has no personal knowledge of training provided to staff on medication side effects apart from what staff are told in interdisciplinary team meetings; (2) does not know how many CHDC residents have been identified as having side effects of psychotropic medications; (3) does not know whether CHDC maintains a list of CHDC residents who have been identified as having side effects of psychotropic medications for referral by CHDC staff; and (4) she did not know how or whether CHDC identified trends and side effects experienced by CHDC residents. Thomas Tr. 1737:19-1738:6, 1735:14-19, 1739:2-8, 1743:13-25.
533. CHDC does not adequately train direct care staff to recognize psychiatric side effects. Mikkelsen Tr. 3655:2-8. Staff did not begin receiving detailed training on medication side effects until April 2010. Murphy Tr. 509:10-510:9, 511:22-512:10. CHDC uses lists of potential side effects, but these lists are generic pro forma printouts that are not tailored to the individual receiving the particular medication. Mikkelsen Tr. 3625:23-3626:7. As such, they are clinically deficient. They do not identify pertinent side effects that can be indications of life-threatening conditions, including extrapyramidal muscular movements, orthostatic hypertension, tachycardia, and temperature changes. Holloway Tr. 2592:14:-2594:18; US Ex. 898 at CONUS-0127243. They do not identify the likelihood of one particular side effect versus another.
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Mikkelsen Tr. 3626:8-12. They have little utility in informing treatment team members about what to watch for. Mikkelsen Tr. 3626:13-16.
534. Defendants’ consultant, Dr. Kraus, agreed that the side effect sheets distributed at interdisciplinary meetings are generic printouts from CHDC’s pharmacy that do not educate staff as to which side effects are of particular concern. Kraus Tr. 6334:9-6335:6. Dr. Kraus also confirmed that CHDC’s consulting psychiatrist does not actually attend interdisciplinary team meetings. Kraus Tr. 6335:7-12.
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Clinically Deficient Diagnoses That Are Used To Justify the Administration of Psychotropic Medications.
535. CHDC’s consulting psychiatrist uses clinically unsupported diagnoses to justify the unwarranted use of psychotropic medications that needlessly expose CHDC residents to harmful side effects and often worsen the very behaviors the medications are used to suppress. In particular, CHDC: (1) does not eliminate potential non-psychiatric causes of challenging behaviors before assigning psychiatric diagnoses to its residents; (2) improperly relies on broad categories of behavior, such as aggression, to justify psychiatric diagnoses; and (3) saddles its residents with unsubstantiated, clinically unjustified, and even clinically illegitimate psychiatric diagnoses. See FOF ## 536-554.
536. All relevant witnesses agreed that, prior to prescribing psychotropic medications, generally accepted practice requires CHDC first to exclude non-psychiatric causes of the individual’s symptoms, such as general medical problems, learned behaviors, and environmental conditions. See Mikkelsen Tr. 3586:12-16; Kraus Tr. 6234:22-6235:1 (Defendants’ consultant);
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Schulz Tr. 6190:14-6191:15 (medical director for the Arkansas Division of Developmental Disabilities).
537. Regardless of the level of an individual’s disability, it is clinically unacceptable to use psychotropic medications in response to an individual’s behaviors without having ruled out environmental or situational causes, and absent indicia of an underlying psychiatric disorder. Mikkelsen Tr. 3599:15-3606:9.
538. A major reason for this rule-out approach is that large numbers of individuals with developmental disabilities have medical or other problems that precipitate behavioral presentations that can be misdiagnosed as psychiatric disorders. Mikkelsen Tr. 3586:17-22. As Defendants’ consultant Dr. Kastner testified, “I think Dr. Mikkelsen and I would agree that in general you don’t want to use psychotropic medication to treat specifically behavioral symptoms. It happens a lot. It's not something that I would encourage.” Kastner Tr. 4141:7-11
539. Once non-psychiatric factors are ruled out, the psychiatrist should begin to form a hypothesis about a psychiatric disorder. In doing so, the psychiatrist should determine whether specific symptoms can explain the disorder. Mikkelsen Tr. 3587:4-9. To reach such a diagnosis, a psychiatrist should identify specific indicia of psychiatric distress. Mikkelsen Tr. 3593:10-17. This requires informing direct care staff of what specific symptoms to track and report. Mikkelsen Tr. 3593:18-22.
540. Yet, Dr. Callahan, the CHDC consultant psychiatrist who sees virtually every CHDC resident receiving psychiatric treatment, Callahan Tr. 5333:14-23, admitted that he plays no role in accounting for non-psychiatric factors before diagnosing individuals with a psychiatric disorder. See Mikkelsen Tr. 3596:12-17. Dr. Mikkelsen’s review of almost 80 charts confirmed
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that Dr. Callahan failed to account for non-psychiatric factors. Mikkelsen Tr. 3596:17-3597:11. Moreover, CHDC’s consultant psychiatrist admitted that he does not even determine the symptoms of an individual’s purported psychiatric illness. Callahan Tr. 5365:13-15. Rather, he simply relies on what psychology examiners tell him the symptoms are, without any input or guidance from him. Holloway Tr. 2529:22-2530:25, 2531:1-13; Mikkelsen Tr. 3596:7-16, 3598:4-8.
541. Further, the information provided by CHDC psychology examiners typically consists of unhelpful raw behavioral data that has not been filtered by any diagnostic criteria. Mikkelsen Tr. 3598:4-14. CHDC’s consulting psychiatrist admitted that typically the information he reviews regarding an individual’s status consists only of broad categories of maladaptive behaviors reflected in rates of aggression and frequency of time in restraints. Callahan Tr. 5366:12-5368:8; US Ex. 824 at CON-US-0126032. Yet, even the “Experts’ Consensus Guidelines” that the Defendants invoke as a standard require the delineation of “specific index behaviors.” Kraus Tr. 6317:7-6318:10. Data on the frequency of self-injurious behavior, aggression, or restraint use, is itself an insufficient basis for reaching a clinically adequate psychiatric diagnosis. Mikkelsen Tr. 3592:5-9. Such data is too broad and must be refined in order to be linked to, and justify, a particular diagnosis. Mikkelsen Tr. 3592:10-3594:8. CHDC’s information deficiency makes it “virtually impossible” for a psychiatrist to reach a professional psychiatric diagnosis. Mikkelsen Tr. 3597:16-3598:3, 3598:9-14.
542. CHDC’s consulting psychiatrist admitted that aggression, by itself, is a nonspecific behavior. Callahan Tr. 5368:10-12. Similarly, Defendants’ consultant Dr. Kraus testified that aggression can have many causes. Kraus Tr. 6317:4-6. Without a direct link to symptoms
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characteristic of a psychiatric disorder, aggression is too nonspecific a behavior for CHDC to use for assessments and treatment. Mikkelsen Tr. 3587:4-3588:4.
543. To make a professional psychiatric diagnosis and assess the efficacy of treatment, the psychiatrist must also instruct the individual’s interdisciplinary team as to what data to report back to the psychiatrist regarding the individual and his or her symptoms. Holloway Tr. 2490:23-2491:14, 2520:23-2521:17, 2523:4-8; Mikkelsen Tr. 3596:1-11. Conversely at CHDC, the consulting psychiatrist admitted, and individuals’ charts confirmed, that he simply defers to the unqualified psychology examiners as to what information should be tracked. Mikkelsen Tr. 3596:7-3597:2; see FOF # 540.
544. Moreover, contrary to generally accepted professional standards, CHDC’s consulting psychiatrist does not memorialize an explanation as to how identified maladaptive behaviors are manifestations of the psychiatric diagnosis assigned to an individual. He explained that he keeps that information in his head. Mikkelsen Tr. 3608:17-23. This is a clinically deficient practice that does not comport with generally accepted practice. Mikkelsen Tr. 3608:24-3609:2. This “in his head” explanation also exacerbates CHDC’s problem with internally inconsistent medical charts documenting residents’ psychiatric diagnoses. Holloway Tr. 2535:9-21.
545. In addition, psychiatric diagnoses at CHDC contradict other aspects of the individual’s presentation. Mikkelsen Tr. 3609:3-3610:4. This is evident in the records of CHDC’s residents. Examples include CHDC diagnosing persons with profound or severe intellectual disabilities as also having attention deficit disorder despite the fact that their level of attention is essentially not measurable. Mikkelsen Tr. 3738:15-18. Other examples include diagnoses of personality change associated with congenital conditions occurring while an infant is still in utero, such as
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personality change due to cerebral palsy. Mikkelsen Tr. 3609:13-22, 3610:22-3611:3, 3612:210. Similarly, CHDC diagnosed ACJ with “organic mood disorder,” an unrecognized and nonexistent diagnosis in the field of psychiatry. Holloway Tr. 2582:11-18.
546. CHDC’s consulting psychiatrist’s diagnoses are also inappropriate because he makes diagnoses for reasons based on illegitimate, non-diagnostic criteria. In particular, CHDC’s consulting psychiatrist admitted that he essentially gives a psychiatric diagnosis to most individuals referred to him at CHDC, even though he admitted that “the primary care physician might well write a referral [to him] just based on” an individual being “aggressive or selfinjurious” when the individual is medically assessed upon admission.” Callahan Tr. 5370:125371:10.
547. Even Defendants’ consultant Dr. Kraus recognized the consulting psychiatrist’s conflicting and clinically unsound diagnoses and raised concerns about the substandard practice with Dr. Callahan. Dr. Kraus testified, “I spoke with Dr. Callahan about a number of the descriptions of personality change with some type of organic etiology like fetal -- personality change related to fetal alcohol syndrome or personality change related to microcephaly, for example.” Kraus Tr. 6257:24-6258:3. “It’s not -- this is not -- I did talk to him. This is not a DSM-IV description. You don’t have personality change from fetal alcohol syndrome.” Kraus Tr. 6258:24-6259:1.
548. CHDC also makes unjustified diagnoses that fail to account for behaviors that are common in individuals with developmental disabilities or in individuals with autism. For instance, persons with severe and possibly profound intellectual disabilities may engage in obsessive behaviors simply as a coping mechanism. Mikkelsen Tr. 3613:6-9. Also, persons with
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autism disorder have inherent obsessive symptoms. Mikkelsen Tr. 3612:19-23. Further, Defendants’ witness, Dr. Parmley, testified that a diagnosis of autism precludes some other diagnoses, including attention deficit hyperactivity disorder and possibly obsessive compulsive disorder (“OCD”). Parmley Tr. 5473:18-25. Accordingly, in diagnosing OCD for an individual with developmental disabilities, a clinician must determine that obsessive behaviors are distinct from autism-related behaviors or other behaviors attributable to an individual’s developmental disability. Mikkelsen Tr. 3612:23-3613:1.
549. Yet, as further evidence of these unjustifiable diagnoses, 27 percent of CHDC residents with a psychiatric diagnosis were also diagnosed as having OCD. Mikkelsen Tr. 3612:14-16. This 27 percent is high compared to the general landscape of persons with developmental disabilities who have a psychiatric disorder. Mikkelsen Tr. 3614:14-20. This rate is also presumptively invalid, given the psychiatric assessments required to make it, Mikkelsen Tr. 3612:17-3613:1, and especially given that CHDC’s consulting psychiatrist admits that he does not rule out non-psychiatric causes before rendering a diagnoses. Mikkelsen Tr. 3596:7-17.
550. Diagnoses matter because they determine treatments used. Mikkelsen Tr. 3588:163589:6, 3610:10-13, 3615:19-3616:1; Holloway Tr. 2535:24-2536:7. CHDC’s deficient psychiatric diagnoses cause harmful treatment implications for CHDC residents. For instance, although CHDC diagnoses many residents with both bipolar and anxiety disorders, common treatments for anxiety disorder will often disrupt a person with bipolar disorder. Mikkelsen Tr. 3611:5-3612:1.
551. A recognized treatment for obsessive compulsive disorder is the use of a class of medications called “SSRIs.” These medications can cause a paradoxical reaction of
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disinhibition, or excitement, if someone actually has autism, and have the potential to destabilize the individual. Mikkelsen Tr. 3613:24-3614:13. CHDC’s consulting psychiatrist acknowledged that, in general, SSRIs have been less effective in treating persons whom he has diagnosed with OCD. Mikkelsen Tr. 3614:24-3615:5. This implies that CHDC wrongly diagnosed these residents with OCD. Mikkelsen Tr. 3615:6-8. The high rate of persons diagnosed with OCD and the lack of efficacy at CHDC of the standard treatment for this disorder are further evidence of CHDC’s deficiencies in diagnosing psychiatric disorders.
552. TN’s case illustrates these CHDC deficiencies. CHDC’s consulting psychiatrist first diagnosed TN with attention deficit disorder, hyperactivity type, notwithstanding that TN was also diagnosed as having a profound intellectual disability. Persons having profound intellectual disabilities have impaired attention, making such an attention deficit disorder diagnosis difficult to establish. Mikkelsen Tr. 3738:11-18. Further, administering antidepressants to someone who has a bipolar disorder risks precipitating a manic episode. Mikkelsen Tr. 3740:3-6. Yet, CHDC’s consulting psychiatrist subjected TN to two trials of antidepressants. Mikkelsen Tr. 3739:6-3740:2. Both trials triggered manic episodes in TN. Mikkelsen Tr. 3739:6-3740:2. CHDC’s consulting psychiatrist subjected TN to the second trial of antidepressants even after the first trial made TN manic and after he diagnosed TN with bipolar disorder, a condition well known to trigger a manic reaction to antidepressants. Mikkelsen Tr. 3739:8-3740:2; Appx. at 910.
553. Similarly, regarding an adolescent male, TM, the CHDC psychiatric consultant noted when first seeing TM that “all the aggression seemed to be a response to something going on around him as opposed to a strictly internal process.” US Ex. 875 at CON-US-0274721-723;
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Holloway Tr. 2549:1-7. Thereafter, the consulting psychiatrist assigned TM the psychiatric diagnoses of both psychosis and generalized anxiety disorder. Holloway Tr. 2550:3-2551:2; US Ex. 875 at CON-US-0274719. Yet, simultaneously assigning these diagnoses is clinically unjustifiable. The standard psychiatric diagnostics tool, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-IV-TR”) instructs that these diagnoses are incompatible and cannot be appropriately assigned simultaneously to the same person. Holloway Tr. 2550:14-23. Additionally, the treatments for psychosis and generalized anxiety disorder are incompatible. Holloway Tr. 2551:3-5. Separately, the consulting psychiatrist did not provide any guidance to TM’s treatment team regarding what to track in order to establish or rule out his diagnosis. Holloway Tr. 2551:15-2553:9.
554. TM also illustrates clinically deficient diagnoses that were noted by Defendants’ consultant Dr. Kraus. CHDC’s consulting psychiatrist unjustifiably diagnosed TM with personality change due to microcephaly. Holloway Tr. 2693:15-2694:5, US Ex. 875. Microcephaly is typically a congenital condition resulting in a small brain at birth. Absent establishing that TM was experiencing ongoing shrinkage of the brain, which was not established for TM, microcephaly could not ever justify a clinical diagnosis of personality change. Holloway Tr. 2721:9-2722:9; Kraus Tr. 6257:24-6258:3, 6258:24-6259:1.
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Harmful Medication Practices.
555. CHDC administers medications to its residents that are not justified by their diagnoses. Further, as with other deficiencies in psychiatric care, CHDC allows non-clinicians to control decisions regarding medication usage. CHDC engages in this practice in part so that it can
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administer psychotropic medications to its residents to suppress behaviors and for other clinically unjustified reasons. See FOF ## 556-581.
1) CHDC’s Clinically Unjustified Selection of Medication 556. Once a psychiatric diagnosis is reached, the psychiatrist should select from among those treatments that are evidence-based, meaning treatments that have been clinically substantiated through research studies and published literature to have demonstrated efficacy and fit for particular psychiatric diagnoses. In making this selection, the psychiatrist should weigh the potential side effects and likely efficacy of the treatment against the harms associated with the diagnosed condition. Mikkelsen Tr. 3588:16-3589:6, 3615:19-3616:1.
557. The CHDC consulting psychiatrist’s notes should clearly articulate the risks and benefits of the chosen treatment, the hypothesis of why he is selecting particular medications, and what symptoms he is targeting. Holloway Tr. 2525:11-23. His notes need to show that his treatment decisions are based on clinical information, and he should amalgamate all this relevant information so that clinicians involved in the individual’s care can readily determine why the psychiatrist is using the medication. Holloway Tr. 2525:11-23, 2568:2-13, 2568:25-2569:9.
558. In comparison, CHDC’s consulting psychiatrist admitted that he does not set out the risks and benefits of medications in his note. Further, he does not educate the team about the risks and benefits of medications, nor does he participate in team discussions of risks and benefits of medications. Callahan Tr. 5371:13-5373:12. Finally, he does not amalgamate all relevant information so that clinicians involved in the individual’s care can access it. Holloway Tr. 2535:9-21 (noting internally inconsistent documentation of residents’ psychiatric diagnoses).
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559. Further, CHDC does not assess in any confirmable way whether the side effects of those medications outweigh the risks associated with the diagnosed psychiatric condition. Even worse, in response to guardians’ wishes, CHDC engages in a pattern of administering medications to its residents that its consulting psychiatrist believes are unwarranted and possibly harmful. Mikkelsen Tr. 3616:21-3618:20. CHDC’s consulting psychiatrist has acknowledged engaging in this practice in his psychiatric notes. Mikkelsen Tr. 3619:22-3620:6.
560. Repeated examples confirm that CHDC does not select medications based on any finding that the medications have been clinically shown to fit a resident’s particular diagnosis and that they have a demonstrated efficacy for that diagnosis. CHDC engages in a pattern of prescribing medications to its residents that are not aligned with the psychiatric diagnoses assigned to those residents. Mikkelsen Tr. 3616:8-20.
561. These practices constitute an illegitimate use of psychotropic medication, and substantially depart from generally accepted minimum professional standards. Mikkelsen Tr. 3616:2-3617:7, 3618:15-20.
562. As Dr. Mikkelsen testified, there are “fundamental problems” in that CHDC’s consulting psychiatrist believes that non-clinicians control medications and dosages to such a degree that the psychiatrist sees himself as having to make unethical treatment decisions regarding CHDC residents. Mikkelsen Tr. 3769:9-16.
563. CHDC’s treatment of SS illustrates this deficiency of prescribing medications determined to be unhelpful or even harmful. Throughout most of the 1990s, SS had experienced great stability on the medication Mellaril. Mikkelsen Tr. 3758:25-3759:2. CHDC’s consulting psychiatrist switched SS from Mellaril to Zyprexa because of SS’s guardian’s wishes, even
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though the consulting psychiatrist concluded that the Zyprexa caused SS to experience glucose problems associated with diabetes mellitus and that there had not been in a major change in SS’s overall condition on the Mellaril. Mikkelsen Tr. 3759:18-3760:3. In fact, CHDC’s data indicate that SS’s acts of aggression had decreased by 80 percent while she was receiving the Mellaril, as compared with when she was receiving Zyprexa. Mikkelsen Tr. 3760:12-21. CHDC subjected SS to dangerous medication side effects, against the treating professional’s judgment, due to SS’s guardian’s wishes, even though the original medication was more effective in treating SS’s behavior. Mikkelsen Tr. 3757:2-15; US Ex. 816.
564. Separately, CHDC’s consulting psychiatrist has treated residents with medications that are known to be harmful, without any clinical justification for the risk of harm. For example, the consulting psychiatrist recommended administering an anti-anxiety medication, lorazepam (also known as Ativan) to CHDC resident BH for behavior suspected to result from a change in BH’s assigned staff. Holloway Tr. 2610:24-2611:5. Independent of the inappropriate use of a psychotropic medication to address environmental factors, Holloway Tr. 2611:6-9, lorazepam is not advised for someone with developmental disabilities unless absolutely necessary because it affects cognitive functioning. Holloway Tr. 2611:12-19. In addition, lorazepam is highly addictive. Holloway Tr. 2612:1-4. Professional standards require a risk/benefit analysis before CHDC used this medication with an individual with developmental disabilities. Holloway Tr. 2611:17-24. BH’s record, however, shows no evidence that CHDC’s consulting psychiatrist undertook such risk/benefit analysis. Holloway Tr. 2614:8-13.
565. In addition, Defendants’ own witnesses admit that CHDC treats children with autism with psychotropic medications that have been clinically shown to be ineffective and harmful to
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children. Kraus Tr. 6296:14-6300:4. Defendants’ consultant Dr. Kraus testified that Dr. Fred Volkmar is the preeminent expert on autism in the country, if not the world. Kraus Tr. 6371:712 (“I would believe anything Dr. Volkmar had to say regarding autism and the treatment related to autism.”). In an article Defendants cited at trial, Dr. Volkmar stated that a medication used at CHDC on children with autism, citalopram, “exhibited significant adverse effects without any evident therapeutic effects in children.” Kraus Tr. 6383:2-4.
2) Clinically Unjustified Medication Usage 566. CHDC’s consulting psychiatrist’s notes make clear that he improperly uses psychotropic medications for reasons unrelated to a psychiatric disorder. Mikkelsen Tr. 3620:13-16. For example, CHDC’s consulting psychiatrist uses psychotropic medications to suppress the effects of other medications, in response to environmental factors, and as chemical restraints. See FOF ## 567-581.
i. CHDC Improperly Uses Medications To Suppress the Effects of Other Medications.
567. CHDC’s consulting psychiatrist encourages the use at CHDC of psychotropic medications to suppress the side effects of another medication without first attempting to remove or replace the offending medication. This practice pattern is an illegitimate use of psychotropic medication, and substantially departs from generally accepted minimum standards. Mikkelsen Tr. 3616:21-24, 3617:7-23, 3618:15-20, 3644:22-3645:13.
568. CHDC’s consulting psychiatrist has openly advocated the use of the psychotropic medication Haldol to suppress agitation caused by another medication, Keppra, without first
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attempting to remove or replace the offending medication. Mikkelsen Tr. 3643:12-3644:6; US Ex. 767; Appx. at 2-3.
569. Beyond advocating this practice, CHDC’s consulting psychiatrist actually has treated a CHDC resident with Haldol to suppress agitation suspected to be caused by Keppra, without first attempting to remove or replace the Keppra. Mikkelsen Tr. 3644:8-16. Haldol can cause a potentially fatal disorder called neuroleptic malignant syndrome. As explained above, CHDC’s use of Haldol on CHDC resident CJ caused CJ to contract neuroleptic malignant syndrome and die. Mikkelsen Tr. 3644:8-18; Appx. at 2-5; see FOF # 509.
ii. CHDC Improperly Uses Medications in Response to Environmental Factors.
570. Psychotropic medications should not be used to treat environmentally driven situations. Holloway Tr. 2538:2-3; see FOF ## 536-537. CHDC’s consulting psychiatrist, however, prescribes psychiatric medications, and recommends dosage increases, for causes that he expressly acknowledges are environmental. Mikkelsen Tr. 3620:7-12; Holloway Tr. 2529:6-8.
571. CHDC’s charts routinely identify environmental factors, such as a change in staff persons or a loud roommate, as the cause of a person’s change in behaviors. These charts note CHDC’s clinically deficient response of administering psychotropic medications to treat the environmentally caused change. Holloway Tr. 2536:17-2537:11; Mikkelsen Tr. 3768:11-15.
572. As noted above, CHDC’s consulting psychiatrist improperly recommended that CHDC administer lorazepam, an addictive anti-anxiety medication that affects cognition, to resident BH because of BH’s environmental response to a change in staff. See FOF # 564; Holloway Tr.
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2610:24-2611:5. This is another example illustrating CHDC’s inappropriate use of psychotropic medication to address behaviors caused by environmental factors. Holloway Tr. 2611:6-9.
573. CHDC’s consulting psychiatrist treats environmentally caused behavior problems with psychotropic medications because CHDC does not address these problems behaviorally or environmentally. Mikkelsen Tr. 3768:16-25, 3769:5-9.
iii. CHDC Improperly Uses Medications for Chemical Restraint. 574. CHDC subjects hundreds of residents to mind-altering psychotropic medications to suppress maladaptive behaviors without a psychiatrist first ruling out non-psychiatric causes of the behaviors. These non-psychiatric causes include possible physical health issues, means of coping (i.e. “learned behaviors”), and environmental factors. Most commonly, CHDC gives psychotropic medications to control so-called “aggressive” or “self-injurious” behaviors. This wide-spread practice constitutes professionally prohibited, chemical restraint. See FOF ## 575581.
575. CHDC uses psychotropic medication on its residents predominately for maladaptive behavior unassociated with a clinical diagnosis of mental illness. Holloway Tr. 2534:21-2535:3, 2533:19-25. A psychiatrist cannot legitimately justify the selection of medication based on aggression by itself. Yet, CHDC’s consulting psychiatrist’s notes present behavioral data in terms of numbers of incidents of aggression, and he improperly bases his treatment decisions on rates of aggression. Holloway Tr. 2532:3-16.
576. CHDC’s consulting psychiatrist admitted that typically the information he reviews regarding an individual’s status consists of only generic descriptions of maladaptive behaviors and negative outcomes, such as rates of aggression and frequency of time in restraints. Callahan
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Tr. 5366:12-5368:8; US Ex. 824 at CON-US-0126032. Having no other justification, CHDC regularly uses psychotropic medication solely to sedate its residents. This constitutes the illegitimate use of psychotropic medications as chemical restraint. Holloway Tr. 2534:1-18; Mikkelsen Tr. 3616:21-24, 3617:25-3618:1, 3618:15-20. This illegitimate chemical restraint occurs “daily” at CHDC. Mikkelsen Tr. 3618:21-3619:12.
577. CHDC continues to use psychotropic medications as chemical restraints even when Defendants’ own clinicians have identified such use as harmful. Dr. Eldon Schulz, medical director of the Arkansas Division of Developmental Disabilities, testified that Depo-Provera has been used to curb hypersexuality in adult males. Schulz Tr. 6187:21-22. Dr. Schulz testified that the State discontinued the use of Depo-Provera in men because the drug posed significant side effects, including breast cancer and testicular cancer. Schulz Tr. 6187:12-6188:5. Defendants’ consultant Dr. Kraus testified that Depo-Provera is a form of chemical castration. Kraus Tr. 6257:2-7. Yet, Dr. Kraus also confirmed that CHDC continues to use Depo-Provera on adolescent males. Kraus Tr. 6256:24-6257:20.
578. Other specific examples of CHDC’s use of unjustified chemical restraint include resident TC, a young boy admitted to CHDC in August 2007, at the age of 6. Mikkelsen Tr. 3720:4-9; US Ex. 803. TC was diagnosed with autism, but no other psychiatric disorders, at admission to CHDC. Mikkelsen Tr. 3720:15-20. For the next two years, TC’s only psychiatric diagnosis continued to be autism. Mikkelsen Tr. 3730:21-24. Yet, in response to “possible situational” factors, CHDC’s consulting psychiatrist recommended increasing TC’s Thorazine dosage, which CHDC had been administering to TC since his admission there. Mikkelsen Tr. 3733:10-14, 3729:25-3730:5; US Exs. 805 & 806. Thorazine has sedating effects, and no clinical basis exists
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for a psychiatrist to use Thorazine to treat autism, particularly for a child. Mikkelsen Tr. 3730:11-3731:5. Tellingly, the consulting psychiatrist did not offer a clinical justification for this use. Mikkelsen Tr. 3731:3-5. Even TC’s team admitted that the cause of TC’s behavior was not psychiatric. Mikkelsen Tr. 3755:1-4, 3734:17-23. Yet, CHDC administered psychiatric medications for the non-psychiatric purpose of chemically restraining TC. Mikkelsen Tr. 3736:8-11; Appx. at 12-15.
579. In another example of chemical restraint, CHDC’s consulting psychiatrist recommended increasing the dosage of the psychotropic medication Seroquel that CHDC administered to DH because DH became agitated when receiving redirection from CHDC staff. Mikkelsen Tr. 3767:2-12; US Ex. 836. CHDC used this increase in psychotropic medication to chemically restrain DH’s behavioral difficulties, not treat a psychiatric disorder. Mikkelsen Tr. 3767:13-20.
580. Youth LW represents yet another example of CHDC’s unjustified chemical restraint use. LW was admitted to CHDC in 2008 at age 6. Holloway Tr. 2558:19-2559:4; US Ex. 899 at CON-US-0134185. LW’s individual program plan does not indicate that LW is receiving any medications for psychiatric reasons, apart from a sleeping disorder. Holloway Tr. 2558:192559:18. LW’s annual nursing assessment indicates that he is given the medication trazadone for sleep at noon. Holloway Tr. 2559:21-2560:2; US Ex. JH-1. Trazadone is an extreme sedative that is inconsistent with normal daily activities for a six-year-old boy, such as school. Holloway Tr. 2560:19-2561:1.
581. LW’s nursing assessment also states that trazadone is administered for behavioral reasons. US Ex. JH-1; Holloway Tr. 2561:19-2562:1. CHDC physician Dr. Parmley admitted that LW is administered trazadone in the middle of the day for behaviors. Parmley Tr. 5455:6-
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24. Neither LW’s nursing assessment nor his individual program plan provides a clinically justifiable purpose for CHDC to give him trazadone for behaviors. US Exs. 899 & JH-1; Holloway Tr. 2562:9-10, 2566:5-13. LW is receiving trazadone as a chemical restraint. Holloway Tr. 2562:7-10.
E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Clinically Deficient Assessments of Medication Efficacy.
582. Properly tracking pro-social and negative behaviors forms an essential part of determining psychiatric treatment. Appropriate medication and psychiatric diagnosis should cause associated symptoms and behaviors to decrease, while pro-social behaviors should increase. Pro-social behaviors include participating in outings, engaging in appropriate interactions, and other activities that are generally viewed as positive. A clinician cannot appropriately determine treatment efficacy without assessing whether all of an individual’s behaviors, positive and negative, have been affected. Mikkelsen Tr. 3598:18-3599:6. Contrary to this standard, CHDC’s consulting psychiatrist admitted that typically the information he reviews regarding an individual’s status consists only of negative considerations - rates of aggression and frequency of time in restraints. Callahan Tr. 5366:12-5368:8; US Ex. 824 at CON-US-0126032. Relatedly, psychology examiners typically report to the consulting psychiatrist only the frequency of problematic behaviors that have been targeted by behavior plans, such as occurrences of aggression or self-injurious behavior. Mikkelsen Tr. 3626:173627:5. They typically do not even mention pro-social behaviors. Mikkelsen Tr. 3627:6-10.
583. Further, generally accepted professional standards require a psychiatrist to link the plan of treatment to established target symptoms associated with an individual’s psychiatric diagnosis.
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Yet, CHDC’s consultant psychiatrist does not explain in his treatment plan how the medications should affect the symptoms of the individual’s disorder. Holloway Tr. 2533:16-18. Nor does he otherwise outline the target symptoms that are associated with a specific diagnosis. Holloway Tr. 2532:16-17. He also does not instruct the individual’s treatment team what to assess, or how to assess it, to determine whether the medication is actually helping the individual. Mikkelsen Tr. 3624:22-3625:7.
584. Instead, as in many other aspects of psychiatric care at CHDC, the facility makes psychology examiners responsible for establishing the targets to judge a medication’s efficacy. Holloway Tr. 2529:22-2530:25, 2531:1-5; Mikkelsen Tr. 3624:22- 3625:2, 3598:4-8; see also Callahan Tr. 5365:13-15 (CHDC’s psychiatrist admitted this fact at trial.).
585. Closely related to determinations of medication efficacy are a psychiatrist’s professional determination of when to increase or lower, e.g., “taper,” the psychotropic medications that an individual receives, because both determinations depend on assessing the individual’s response to the medication. Taper criteria should be established according to evidence-based practice regarding psychiatric disorders and associated medications, and objective data based on the individual’s target symptoms and ability to participate and enjoy daily activities. Holloway Tr. 2579:6-2580:3, 2577:14-2578:3.
586. At CHDC, taper criteria for medications substantially depart from generally accepted minimum standards. As in other areas of psychiatric care, CHDC psychology examiners establish the taper criteria for medication adjustments at CHDC without the consulting psychiatrist’s participation. Holloway Tr. 2532:24-2533:2; see also Callahan Tr. 5364:2-10
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587. Contrary to CHDC’s practice, taper criteria should not be based simply on incidents of aggression. Holloway Tr. 2581:3-7. Yet, CHDC psychology examiners use rates of broad behaviors, such as aggression, as the driving force behind assessing medication effects. Holloway Tr. 2533:3-9. Moreover, CHDC’s focus is on maladaptive behaviors that are not even linked or identified with a diagnostic condition. Holloway Tr. 2533:19-25. Beyond CHDC’s substandard taper practice, this also shows CHDC’s improper use of psychotropic medication as chemical restraint to suppress behaviors.
588. The improper taper criteria CHDC employed to reduce LW’s psychotropic medication, trazadone, illustrates this deficiency. The criteria require that LW sleep an average of eight hours a night for a year, a standard that would be too high for most individuals to achieve. Holloway Tr. 2561:15-18, 2580:4-15; US Ex. 899 at CON-US-0134 200. The taper criteria found throughout the individual program plans for CHDC residents have similar critical flaws. Holloway Tr. 2580:16-24.
F. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Delayed Psychiatric Assessments.
589. CHDC’s failure to provide timely and comprehensive consultations and assessments substantially departs from generally accepted practices. Holloway Tr. 2621:14-18; see FOF ## 591-595.
590. For extended periods of time, CHDC routinely withholds psychiatric care from residents whom CHDC has identified as experiencing psychiatric distress or psychiatric instability. This delay in psychiatric intervention is a substantial departure from generally accepted professional standards that exposes individuals to harm and risk of harm from prolonged psychiatric distress
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and instability. CHDC compounds this delay in psychiatric services by also failing to provide sufficient amounts of psychiatric services. See FOF ## 591-610.
1) CHDC’s Substandard Delays in Seeing Individuals After Admission 591. CHDC’s consulting psychiatrist does not see individuals identified as having possible psychiatric issues in a clinically appropriate time after admission. Holloway Tr. 2517:13-23; Mikkelsen Tr. 3654:22-3655:1. CHDC’s consulting psychiatrist acknowledged that he does not know when he sees individuals following their admission to CHDC. Holloway Tr. 2517:7-12.
592. According to generally accepted professional standards, a qualified child and adolescent psychiatrist should perform a consultation within 7 days of admission for patients age 14 and 15 (and a follow up every 30 days) and within 21 days for patients 16 to 17 (and a follow up every 45 days). US Ex. 870; Holloway Tr. 2548:4-10. Even Defendants’ consultant Dr. Kastner identified 30 days of admission as an appropriate care standard for psychiatric evaluations after admission. Kastner Tr. 4085:19-25.
593. As discussed above, CHDC admitted a young boy, CHL, while he was receiving the psychotropic medication lithium. See FOF # 510. This medication must be carefully managed because of the narrow range between what is therapeutic and toxic. A child psychiatrist should see a young boy on lithium soon after admission. Mikkelsen Tr. 3681:8-13. In CHL’s case, CHDC’s consulting psychiatrist did not see CHL or even involve himself in CHL’s care until more than five weeks after CHL was admitted to CHDC. Even more dangerously harmful, this included a week after CHL became comatose from lithium toxicity, had to be airlifted to the hospital, was subjected to multiple rounds of dialysis, and nearly died. US Ex. 897; Appx. at 58.
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594. Defendants’ own witnesses repeatedly confirmed that CHDC routinely and grossly exceeds the clinical standards of care endorsed by Dr. Holloway, and even Defendants’ consultant Dr. Kastner. See Kraus Tr. 6251:8-25 (CHDC resident MB was admitted to CHDC with a number of medical and psychiatric disorders but was not seen by a psychiatrist until approximately three months after her admission.), 6261:15-6262:17 (CHDC resident HB was admitted to CHDC with a number of complex medical, behavioral, and psychiatric disorders but was not seen by a psychiatrist until approximately two months after his admission.), 6304:216305:9 (CHDC resident JM was admitted to CHDC with a number of medical and psychiatric diagnoses, including seizures, autism, and “stable brain atrophy,” and while receiving multiple psychotropic medications, but was not seen by a psychiatrist until approximately two months after his admission.), 6269:11-20 (CHDC resident MM was admitted to CHDC with a number of behavioral and psychiatric disorders but was not seen by a psychiatrist until approximately seven weeks after admission.), 6270:22-6271:7 (CHDC resident CJ was admitted to CHDC with a psychiatric diagnosis of autism and was receiving multiple psychotropic medications but was not seen by a psychiatrist until approximately eight weeks after admission.), 6307:6-15 (CHDC resident SW was admitted to CHDC with diagnoses of seizures, autism, and anxiety disorder but was not seen by a psychiatrist until approximately seven weeks after admission.), 6271:8-6272:7 (CHDC resident RD was admitted to CHDC with a number of medical disorders and while receiving multiple psychotropic medications, but was not seen by a psychiatrist until approximately eight weeks after admission.), 6280:2-18 (CHDC resident HA was admitted to CHDC with a history of ADHD but was not seen by a psychiatrist until approximately 12 weeks after admission.); Holloway Tr. 2545:16-2546:16, 2546:22-2547:6; Kraus Tr. 6292:9-20; US Ex. 875 at CON-US-0274721-723 (CHDC resident TM was admitted to CHDC while receiving the
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psychotropic medication Risperdal twice a day. TM also had a history of prior psychiatric hospitalizations and a seizure disorder. Nevertheless, TM was not seen by a psychiatrist until approximately five weeks after admission to CHDC.).
595. CHDC’s excessive delays in providing psychiatric care to individuals who have been identified with psychiatric needs harms these individuals by leaving them in psychiatric distress and instability and exposes them to harm from improperly managed psychotropic medication, as evidenced by CHL. See FOF ## 510, 591 & 592.
2) Clinically Inadequate Psychiatric Oversight 596. According to CHDC, many of its residents have highly complex psychiatric needs. Kraus Tr. 6232:6-15; Mikkelsen Tr. 3584:5-8. In fact, nearly 300 of CHDC’s 500 residents receive psychotropic medications, and approximately half of them receive multiple psychotropic medications. Mikkelsen Tr. 3584:16-19.
597. Although CHDC administers psychotropic medications to most of its residents, CHDC fails to provide them with timely psychiatric oversight of those medications, exposing them to harm from inadequate medication management and insufficient psychiatric care to meet their needs. CHDC makes residents with severe psychiatric diagnosis and complex medication regimens wait months for necessary follow up and monitoring. See FOF ## 598-609.
598. According to generally accepted professional standards, a psychiatrist should physically see an individual who is not doing well psychiatrically at least once every two weeks to stabilize the individual. Holloway Tr. 2511:16-19. The psychiatrist should conduct follow-up visits at least weekly for an unstable individual who is undergoing medication changes, and every three
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months for a person who is extremely stable and receiving psychotropic medications that do not have many side effects. Mikkelsen Tr. 3621:6-12.
599. Contrary to these accepted standards, CHDC’s consulting psychiatrist acknowledged that he rarely sees anyone more than once a month. Mikkelsen Tr. 3631:25-3632:2. Moreover, the majority of the psychiatrist’s follow-up visits occur below the standard at two-to-three-month intervals. Mikkelsen Tr. 3622:4-6. The psychiatrist even subjects residents whom he identified as experiencing a difficult psychiatric period to this substandard two-to-three-month follow-up practice. Mikkelsen Tr. 3623:23-3624:1. All these CHDC follow-up practices constitute substandard psychiatric care. Mikkelsen Tr. 3624:2-3.
600. CHDC’s frequency of psychiatric follow up even fails Defendants’ own purported standards. Defendants invoke the “Experts’ Consensus Guidelines.” Kastner Tr. 4149:15-17. These guidelines state that psychiatrists should “[r]eview regimen regularly (at least every three months and within one month of drug/dose change) to determine if medication is still necessary and if lowest optimal effective dose is being used.” Kastner Tr. 6318:2-10.
601. There are many examples of CHDC substantially departing from generally accepted standards for resident monitoring. In CHL’s case, after waiting five weeks to see CHL following his admission, and his near death from the side effects of psychotropic medication, the consulting psychiatrist scheduled CHL’s next appointment for three months later. Mikkelsen Tr. 3679:2-4; Appx. at 5-8.
602. During a May 2009 psychiatric consult, CHDC’s consulting psychiatrist identified TM as having potential psychosis and identified several possible factors affecting TM’s condition. He did not, however, give any guidance to TM’s treatment team regarding what to track in order to
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establish or rule out this diagnosis. Holloway Tr. 2549:11, 2551:15-2553:9. Notwithstanding the uncertainty in TM’s psychiatric condition, CHDC’s consulting psychiatrist scheduled TM’s next psychiatric appointment for two months later. Holloway Tr. 2553:2-5. 603. Defendants’ consultant Dr. Kraus testified that his review of LW’s psychiatric care indicated that LW had gone nine months between psychiatric visits. Kraus Tr. 6245:22-6247:2. 604. Defendants’ consultant Dr. Kraus testified that his review of MB’s psychiatric care indicated that MB had gone six months between psychiatric visits. Kraus Tr. 6252:1-16. Dr. Kraus further testified that MB was scheduled to go another three months between psychiatric visits, even though CHDC was changing her psychotropic dosages. Kraus Tr. 6253:12-22; see also Kraus Tr. 6255:20-23 (conceding that an earlier follow up was “not a bad idea”). 605. Defendants’ consultant Dr. Kraus testified that his review of resident CJ’s records indicated that CJ had gone more than three months between psychiatric visits, even though CHDC’s consulting psychiatrist had commented during CJ’s last psychiatric visit that CJ had an increase in targeted behavior following a medication change. Kraus Tr. 6269:21-6270:5. 606. Defendants’ consultant Dr. Kraus testified that his review of resident JM’s records indicated that JM had gone more than four months since JM’s last psychiatric visit, even though JM had diagnoses of autism, seizures, stable brain atrophy, and JM was receiving multiple psychiatric medications. Kraus Tr. 6304:21-6305:12. 607. Defendants’ consultant Dr. Kraus testified that he found “a series of kids that had not been seen in six to nine months, and I brought this up.” Kraus Tr. 6252:9-11. Dr. Kraus testified
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that CHDC’s delays in seeing youths at CHDC led him to recommend that CHDC obtain additional psychiatric services. Kraus Tr. 6253:6-11.
608. Rather than see residents on a timely basis, CHDC’s consulting psychiatrist will recommend several medication changes, including classes of different medications in which the individual’s response is more uncertain, based on rates of broadly categorized behavior categories or uses of restraint. He routinely makes such dangerous changes without spelling out a diagnostic formulation, identifying the target symptoms for a particular medication, or specifying the indications for medication changes. Holloway Tr. 2528:19-2529:5, 2538:4-14, 2569:10-2571:5; Mikkelsen Tr. 3622:10-15. As a consequence, CHDC places residents at risk of experiencing harmful reactions to medications or other changes in their condition because of significant changes in their medications without being seen by a psychiatrist for an extended period. This is a substantial departure from generally accepted professional standards of care. See FOF ## 509, 510 & 598. The CHDC consulting psychiatrist’s recommendations sometimes involve making as many as four potential medication changes before the consulting psychiatrist even sees the individual again in two to three months. Mikkelsen Tr. 3622:15-18.
609. The consulting psychiatrist’s July 2009 consulting note for BLH illustrates this dangerously substandard practice: “If we see no improvement in frequency of behavior reports, could consider 25-milligram increase in the thioridazine dosage in the morning as tolerated.” Holloway Tr. 2571:15-2572:11. As Dr. Holloway testified, “Instead of Dr. Callahan coming in and assessing the individual and ruling out potential other variables in this example, such as akathisia . . ., the psych examiner comes in and . . . recommended an increase in thioridazine of 25 milligrams as noted per Dr. Callahan’s last note. And [the psychology examiner] says: ‘I
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recommend an increase and will monitor for any effectiveness, decrease agitation, aggression, and any side effects.’” Holloway Tr. 2572:17-2573:2. In other words, in the interim between psychiatric visits, the psychology examiner, rather than the psychiatrist, initiated a change in BLH’s psychotropic medication. Holloway Tr. 2572:17-2573:2. BLH represents just an example of this substandard practice at CHDC. Holloway Tr. 2576:5-7.
3) CHDC’s Insufficient Availability of Psychiatric Services 610. CHDC’s consulting psychiatrist does not work for CHDC anywhere near a minimally sufficient time to meet the needs of persons on his case load. Defendants’ contract with him provides approximately a mere 18 hours a week of psychiatric consulting services to approximately 500 people diagnosed with co-occurring psychiatric diagnoses across three State institutions. Mikkelsen Tr. 3650:3-3651:2; Callahan Tr. 5374:13-21. This time is not nearly sufficient, particularly given the complexity of CHDC’s population. Holloway Tr. 2511:242512:5, 2539:11-19. Mikkelsen Tr. 3651:3-10. CHDC residents’ needs require the equivalent of a full-time psychiatrist to be on site. Holloway Tr. 2539:19-24. Defendant’s consultant Dr. Louis Kraus testified that his assessment as to the adequacy of psychiatric services at CHDC was dependent upon CHDC’s consulting psychiatrist working full-time at CHDC. Kraus Tr. 6361:15-18. Dr. Kraus wrongly assumed that CHDC’s consulting psychiatrist worked full-time at the facility. Kraus Tr. 6361:15-18, 6368:1-6. Even based on the incorrect assumption that CHDC’s consulting psychiatrist worked full-time at CHDC, Dr. Kraus concluded that “they could benefit from additional psychiatric care and [sic] something they should talk to the University about in regard to their contract.” Kraus Tr. 6213:5-11.
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G. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from CHDC’s Failure To Provide Its Consulting Psychiatrist with Sufficient Training and Oversight.
611. CHDC’s consulting psychiatrist has no formal training in treating individuals with developmental disabilities. Further, he is not board-certified in child and adolescent psychiatry and has had no formal training in treating children and adolescents. Yet, CHDC maintains that many of the children under his care have complex psychiatric histories. Further, CHDC provides no clinical oversight over its consultant psychiatrist or other mechanisms to address his deficiencies in training. See FOF ## 612-624.
612. Dr. Douglas Callahan is the consulting psychiatrist at CHDC. Callahan Tr. 5333:14-18. Dr. Callahan has responsibility for virtually all of CHDC’s residents receiving psychiatric consultation services. Mikkelsen Tr. 3590:3-4, 3590:14-18; Holloway Tr. 2504:22-2505:10.
613. Although the consulting psychiatrist does not sign the actual orders for medication administration, CHDC’s primary care physicians simply adopt his recommendations in virtually every instance. Mikkelsen Tr. 3590:4-8; Callahan Tr. 5374:9-12; Thomas Tr. 1734:3-22; Parmley Tr. 5471:10-13. As a practical matter, CHDC’s consulting psychiatrist treats CHDC’s residents. Mikkelsen Tr. 3655:9-17.
614. Dr. Callahan is not adequately trained or supervised to serve as CHDC’s psychiatrist. A psychiatrist treating individuals at like those at CHDC should either have specialized training in serving persons with developmental disabilities or have supervision on the job that would constitute such training because individuals with developmental disabilities and psychiatric needs often have issues of assessment, diagnosis, and care that are distinct from individuals
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without developmental disabilities. Mikkelsen Tr. 3639:10-19, 3640:6-25. CHDC’s consulting psychiatrist admits that he has had no specialized training in providing psychiatric care to individuals with developmental disabilities. Callahan Tr. 5352:5-8; Mikkelsen Tr. 3638:13-16; US Ex. 763-1. Nor has he received on-the-job training in treating individuals with developmental disabilities. Mikkelsen Tr. 3640:20-3641:3. Nor is he supervised by someone who has had such training. Holloway Tr. 2505:13-14; Mikkelsen Tr. 3641:11-20; Thomas Tr. 1730:2-6.
615. CHDC’s consulting psychiatrist is even less qualified to provide psychiatric care to CHDC children. The consulting psychiatrist provides psychiatric care to children as young as seven, and acknowledged that children admitted to CHDC often have had numerous prior psychiatric hospitalizations. Holloway Tr. 2513:8-9, 2510:2-4. CHDC currently houses approximately 50 children. A. Green Tr. 846:2-3; US Ex. 229. Approximately half of them are receiving psychotropic medications. Mikkelsen Tr. 3589:24-25. These individuals often are experiencing complex psychiatric disturbance and require specialty services. Holloway Tr. 2515:4-8.
616. Notwithstanding the complexity of children and adolescents at CHDC, CHDC’s consulting psychiatrist is not board certified in child psychiatry. Callahan Tr. 5352:16-19; Holloway Tr. 2513:9-22; Mikkelsen Tr. 3638:13-19. CHDC’s consulting psychiatrist has never participated in a child psychiatry residency program. Callahan Tr. 5353:21-5354:1; Mikkelsen Tr. 3641:9-10.
617. CHDC’s consulting psychiatrist has had no formal training in child and adolescent psychiatry. Mikkelsen Tr. 3638:16-24; US Ex. 763-1. CHDC’s consulting psychiatrist does not
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consult with a child and adolescent psychiatrist to supplement his lack of training. Mikkelsen Tr. 3641:11-16; Holloway Tr. 2548:15-16.
618. The American Academy of Child and Adolescent Psychiatry has issued policy statements setting out the qualifications for psychiatrists treating children and adolescents needing institutional psychiatric care. US Ex. 870; Holloway Tr. 2515:25-2516:21. These policy statements instruct that, for children “under 14 years of age, a qualified psychiatrist is a child and adolescent psychiatrist who is board certified in child and adolescent psychiatry or a psychiatrist who, in addition to general psychiatry training, has successfully completed a training program in child and adolescent psychiatry accredited by the accreditation council of graduate medical education,” and for persons “14 to 17 years of age or older, a qualified psychiatrist is a child and adolescent psychiatrist . . . or a general psychiatrist who has documented sufficient specialized training and experience in working with adolescents and their families on an inpatient treatment program and has demonstrated competence to examine and treat adolescents comprehensively.” US Ex. 870; Holloway Tr. 2515:25-2516:21. CHDC’s consulting psychiatrist lacks such qualifications. Holloway Tr. 2516:22-23.
619. CHDC’s failure to provide psychiatric treatment to children and adolescents through a qualified psychiatrist substantially departs from generally accepted professional standards. Holloway Tr. 2621:4-9.
620. CHDC provides no clinical supervision or clinical oversight to the unqualified consulting psychiatrist. Holloway Tr. 2505:13-14; Mikkelsen Tr. 3639:23-3640:5, 3641:17-20. CHDC’s consulting psychiatrist testified that the closest person to someone who exercised clinical oversight of him was Dr. Denise Thomas. Callahan Tr. 5376:7-9. Tellingly, Dr. Thomas
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testified that she does not supervise CHDC’s consulting psychiatrist, nor does anyone provide clinical oversight of CHDC’s consulting psychiatrist. Thomas Tr. 1729:25-1730:6.
621. CHDC’s consulting psychiatrist is not subject to formal, routine peer review. Holloway Tr. 2505:11-12; Mikkelsen Tr. 3641:21-22, 3645:14-3646:18; US Ex. 776.
622. CHDC has no policies and procedures governing psychiatric services. Holloway Tr. 2504:14-16.
623. The medication utilization of CHDC’s consulting psychiatrist is not subject to review. Holloway Tr. 2596:16-21.
624. CHDC’s failure to provide clinical supervision or clinical oversight to the unqualified consulting psychiatrist substantial departs from generally accepted professional standards. Holloway Tr. 2640:10-20, 2705:3-2706:5.
H. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Psychiatric Care Results in Harm to CHDC Residents from Lack of Coordination and Communication Regarding Psychiatric Care.
625. The failure of CHDC’s clinicians to coordinate effectively to meet the needs of CHDC residents has contributed to the death of at least one resident and to multiple other breakdowns in care. CHDC’s system of psychiatric care substantial departs for generally accepted minimum professional standards by not ensuring clinicians coordinate care resulting in dangerously uninformed treatment and medication decisions. See FOF ## 626-637.
626. CHDC resident CJ’s death from Haldol shows the harmful effects of CHDC’s failure to coordinate clinician services. Resident CJ died from neuroleptic malignant syndrome caused by Haldol, which CHDC inappropriately administered to suppress the side effects of another,
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unnecessary medication, Keppra. See FOF # 509; Appx. at 2-5. There is no evidence that clinicians involved in her care communicated and coordinated to determine the necessity of the Keppra or the purported necessity of the Haldol which killed her. Appx. at 2.
627. Similarly, CHDC resident TN required blood transfusions to correct dangerously low platelets. CHDC clinicians knew that the psychotropic medication Depakote likely was causing TN’s drop in blood platelets. Yet, TN’s chart indicates that CHDC’s clinicians did not know whether a neurologist had determined that TN continued to require the Depakote, which was started years earlier in response to possible seizures, and there is no evidence that CHDC clinicians coordinated to determine whether TN needed to receive the Depakote instead of one of several alternative medications. Appx. at 9-10.
628. CHDC clinicians need to work together on a systematic basis because CHDC residents receive numerous medications for varied medical issues. Holloway Tr. 2493:24-2494:1; Mikkelsen Tr. 3628:22-3629:10. The generally accepted systematic treatment process requires the psychiatrist to address the whole medical case, not just the psychiatric case, because of drug to drug interactions and side effects that may occur if one is receiving complex medication regimens. Holloway Tr. 2494:7-10. Changing even one medication can cause changes in the effects of other medications. Holloway Tr. 2494:11-2495:3, 2578:7-2579:5; Mikkelsen Tr. 3629:5-10. CHDC’s records, however, indicate that there is no continuity between the medical and psychiatric disciplines and no meaningful coordination of care for overlapping medical and psychiatric conditions. Holloway Tr. 2506:20-2507:4. The cases of CJ and TN illustrate the associated harms. Appx. at 2-5, 9-10.
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629. Because psychiatric and neurological medicines have overlapping effects on psychiatric and neurologic disorders, psychiatric and neurologic care must be closely coordinated. Mikkelsen Tr. 3629:11-15. This coordination needs to be memorialized in writing. Mikkelsen Tr. 3630:8-10. At CHDC, the consulting psychiatrist does not even speak with neurologists who provide care to persons on his case load. Holloway Tr. 2507:5-8; Mikkelsen Tr. 3630:11-20. CHDC’s consulting psychiatrist admitted that his communication with other specialist clinicians treating individuals on his caseload is limited to reviewing their notes. Callahan Tr. 5375:1-11. A review of another clinician’s notes is not a substitute for raising issues of overlapping care with another clinician and consulting about how that care will proceed going forward. Mikkelsen Tr. 3629:24-3630:10.
630. CHDC’s physicians do not involve, or even contact, the consulting psychiatrist when emergency psychiatric care is provided to CHDC residents. Holloway Tr. 2512:6-2513:2. Indeed, the primary physician responsible for prescribing emergency psychiatric medications for CHDC residents does not know the consulting psychiatrist and has never even met him. Holloway Tr. 2507:21-2508:6.
631. The CHDC consulting psychiatrist is not notified when an individual on his caseload is given emergency psychiatric medication and does not learn about the emergency psychiatric medication until he next sees the individual for a regularly scheduled appointment. Holloway Tr. 2508:7-15.
632. The use of emergency psychiatric medication represents a significant clinical event. This emergency use should trigger the prompt involvement of the psychiatrist and the IDT to assess the reasons why the medication was administered and what the psychiatrist and IDT should do to
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avoid having to use emergency psychiatric medication again. CHDC’s consulting psychiatrist frequently delays addressing such serious clinical events until the resident’s next clinic appointment, an unacceptable practice that substantially departs from generally accepted professional standards. Holloway Tr. 2508:16-2509:15.
633. CHDC’s consulting psychiatrist does not participate in IDT meetings and does not consider himself to be a member of the IDT. Holloway Tr. 2505:15-18; Mikkelsen Tr. 3590:1923.
634. The consulting psychiatrist’s interactions with the individuals he treats, and staff responsible for their care, consists primarily of briefly meeting with the individual in an office, in the company of a direct care staff person and a psychology examiner. Holloway Tr. 2507:13-17; Mikkelsen Tr. 3590:8-11.
635. CHDC’s consulting psychiatrist sees individuals in an office setting, rather than an environment more conducive to the individuals, even when doing so is known to be upsetting for the individual, to trigger aggressive behaviors, to be physically harmful to staff, and to likely reinforce the individual’s problematic behaviors. Mikkelsen Tr. 3632:3-3635:5; US Ex. MC-4. This does not comport with generally accepted professional standards of care. Mikkelsen Tr. 3636:21-3637:15.
636. The consulting psychiatrist’s lack of interaction with individuals’ interdisciplinary teams is a departure from generally accepted professional standards of care. Mikkelsen Tr. 3627:17-23.
637. CHDC’s consulting psychiatrist does not regularly interact with individuals’ primary care providers to discuss cases in an organized way. Mikkelsen Tr. 3627:24-3628:3. This is a
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departure from generally accepted professional standards of care. Mikkelsen Tr. 3628:3-6. This lack of structured interaction with medical providers complicates the important issue of ensuring that medical problems are accounted for in assessing the causes of a possible disorder. Mikkelsen Tr. 3628:11-21.
IX. CONCLUSIONS OF LAW– PSYCHIATRY Defendants harm CHDC residents in multiple respects through grossly deficient
psychiatric care, in violation of their constitutional rights. Under the Fourteenth Amendment’s Due Process Clause, “adequate . . . medical care” is one of the care “essentials” that a state must provide to institutionalized individuals with development disabilities. Youngberg v. Romeo, 457 U.S. 307, 324 (1982); see also Rennie v. Klein, 720 F.2d 266, 269 (3d Cir. 1983). Accordingly, Defendants violate the Due Process Clause when they provide care that substantially departs from professional standards. Rennie, 720 F.2d at 269; see also Morgan v. Rabun, 128 F.3d 694, 697-98 (8th Cir. 1997); Heidemann v.Rother, 84 F.3d 1021, 1029 (8th Cir. 1996).
When evaluating the professional judgment regarding the prescribing of psychotropic medication, courts should consider “whether and to what extent the patient will suffer harmful side effects.” Rennie, 720 F.2d at 269. CHDC harms its residents, in violation of their constitutional rights, by failing to recognize or treat side effects and toxic levels of psychotropic medication, causing fatal and serious harm or risk of harm to residents, in a substantial departure from professional standards of psychiatric care. CHDC’s only psychiatrist does not adequately monitor residents for side effects and medication levels; CHDC’s direct care staff and on-call physician fail to detect side effects and toxic levels; and the facility itself maintains no overall
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system of tracking risk factors that result from unmonitored administration of psychotropic medication.
CHDC also unlawfully harms its residents through other deficient psychiatric practices that substantially depart from generally accepted professional standards, namely: its use of clinically deficient diagnoses to justify medications; its unjustified medication practices (including to suppress other medication’s side effects, in response to non-psychiatric environmental behaviors, and as chemical restraints); its clinically deficient assessments of medication efficacy; and its untimely psychiatric assessments and follow up care. To satisfy constitutional standards, treatment practices must reflect “professional judgment.” Youngberg, 457 U.S. at 322-23. At minimum, evidence must show that such professional judgment was indeed exercised. Id. This standard is not met when a professional’s decision substantially departs from generally accepted standards or practice. Id.; see Thomas S. v. Flaherty, 902 F.2d 250, 252-254 (4th Cir. 1990) (treating professional’s decision not conclusive in determining whether professional judgment was indeed exercised). The foregoing evidence compellingly demonstrates such harmful departures.
Finally, CHDC violates its residents’ constitutional rights to adequate psychiatric care through its use of a consultant psychiatrist who is not a professional qualified to treat children with developmental disabilities, who has had no training in providing psychiatric care to individuals with developmental disabilities, who is effectively providing treatment without clinical oversight, and who lacks sufficient time to meet individuals’ needs. Professional decisions about the services a resident receives must be based upon the individual’s needs, not available services or administrative convenience. See Ohlinger v. Watson, 652 F.2d 775, 779 (9th Cir. 1981) (“Lack of funds, staff or facilities cannot justify the State’s failure to provide
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appellants with that treatment necessary for rehabilitation.”); see also Thomas S. v. Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988) (“Professional judgment probably was not exercised ‘if it was modified to conform to available treatment rather than appropriate treatment.’”) (internal citation omitted); Lelsz v. Kavanagh, 629 F. Supp. 1487, 1495 (N.D. Tex. 1986) (“Evidence that the professional judgment was made to conform to what was available may indicate that the judgment was ‘a substantial departure from accepted professional judgment, practice or standards.’”). Here, the evidence clearly establishes that psychiatric treatment is chronically and grossly delayed and provided by one psychiatrist with insufficient training or availability to meet the needs of the many CHDC residents on his caseload, in violation of their constitutional rights. See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120-21 (9th Cir. 2003) (delays in providing pretrial detainees with access to mental health care violates Due Process Clause).
X. FINDINGS OF FACT – MEDICAL CARE 638. CHDC’s medical care significantly and systemically departs from generally accepted professional standards of care. Mikkelsen Tr. 3573:22-3574:22. In particular, CHDC clinicians lack oversight and depend excessively on direct care staff to identify changes in health status. As a consequence, CHDC provides untimely care that has resulted in extraordinarily high rights of mortalities from normally nonfatal aspiration pneumonias and a strikingly young average age of death. See FOF ## 639-653.
A. CHDC Inappropriately Relies on Untrained Direct Care Staff To Identify Changes in Health Status.
639. At CHDC, primary care physicians do not make rounds on residential units. Thomas Tr. 1746:22-1747:3. Rather, CHDC gives untrained direct care staff responsibility for identifying individuals who require medical attention. Thomas Tr. 1747:4-10. CHDC’s medical director
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does not know whether CHDC provides direct care staff with any reference materials to consult to identify medical problems. Thomas Tr. 1747:11-15.
640. At CHDC, direct care staff do not have adequate training to recognize emerging medical problems. Mikkelsen Tr. 3655:7-8. At CHDC, primary care physicians typically see individuals only through a sick call process. Mikkelsen Tr. 3651:18-3653:1. CHDC’s sick call system is not adequate, because the system relies too heavily on untrained direct care staff to make crucial medical observations. Mikkelsen Tr. 3653:15-24.
B. CHDC Exercises Insufficient Clinical Oversight. 641. CHDC’s medical director does not exercise a significant supervisory and quality assurance role. She literally does not know anything about a variety of important issues that directly affect the quality of medical care. For instance, CHDC’s medical director could not recall whether she reviews any assessments of hospitalization trends. Thomas Tr. 1750:1-5.
642. CHDC’s medical director has no specialized training in treating individuals with developmental disabilities. Thomas Tr. 1724:22-25. Moreover, only one of CHDC’s four primary care physicians has any specialized training in the provision of medical care to individuals with developmental disabilities. Thomas Tr. 1725:1-4; Parmley Tr. 5482:6-9.
643. CHDC gives the on-call physician, who has no specialized training in treating individuals with developmental disabilities, responsibility for seeing CHDC residents after hours and on weekends, and for treating them while hospitalized. Thomas Tr. 1725:22-24, 1726:11-16. This physician is effectively working around the clock, raising issues of fatigue and judgment. Mikkelsen Tr. 3655:22-3657:3. CHDC’s medical director supervises the on-call physician. Thomas Tr. 1725:11-14. CHDC’s medical director does not know why the on-call physician
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does not attend CHDC medical peer reviews. Thomas Tr. 1729:3-10. She testified that she does not know this information because “[w]e never asked him.” Thomas Tr. 1729:3-10. CHDC’s medical director admitted that she did not “have a clue” regarding the accuracy of the on-call physician’s estimate that approximately 70 percent of hospitalizations of CHDC residents relate to pneumonia. Thomas Tr. 1750:11-16. 644. CHDC’s medical director testified that she did not know the accuracy of CHDC on-call physician’s estimate that 20 percent of hospitalizations of CHDC residents relate to potentially fatal bowel obstructions. Thomas Tr. 1750:17-1751:4. 645. CHDC’s medical director testified that she did not know whether CHDC had undertaken any studies regarding the causes of CHDC residents’ deaths. Thomas Tr. 1751:8-10. 646. CHDC’s medical director testified that she did not know what is the leading cause of death at CHDC. Thomas Tr. 1751:11-13. 647. CHDC’s medical director knows little about CHDC’s medication side effect control system. See FOF # 532. 648. CHDC’s medical director testified that she was unaware of any instance in which CHDC had reason to even question the care provided by a CHDC doctor or nurse to a CHDC resident. Thomas Tr. 1751:14-18. 649. At CHDC, physicians as a group meet no more than monthly to discuss patient care. Thomas Tr. 1747:16-1749:11. This is insufficient. Mikkelsen Tr. 3654:14-18.
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650. CHDC’s medical director testified that she does not have responsibility for the overall care of CHDC residents. Instead, each physician is responsible for their own case load and “they have their malpractice insurance.” Thomas Tr. 1751:19-1752:9.
C. CHDC’s Bad Clinical Outcomes Confirm Its Deficiencies in Medical Care. 651. Based on a two-year period, the average age of death at CHDC is 46.5 years, which is shockingly young. Mikkelsen Tr. 3772:5-16. This is a significant deviation from the average age of death for persons with developmental disabilities residing in similar facilities. For instance, the average age of death in similar facilities in Massachusetts is approximately 71 years old. Mikkelsen Tr. 3772:16-18.
652. Almost two-thirds of CHDC’s deaths are due to pneumonia or aspiration pneumonia. Mikkelsen Tr. 3772:18-22. This rate is unusually high. Mikkelsen Tr. 3776:11-16. By comparison, the percentage of individuals with developmental disabilities who died in Massachusetts from aspiration pneumonia ranged from approximately 9 to 12 percent for the years 2002-2007. Mikkelsen Tr. 3774:12-18, 3777:4-24.
653. Arkansas community providers, who serve individuals with the same types of disabilities and medical concerns as CHDC’s residents, testified that they have not had any clients die of aspiration pneumonia. Alberding Tr. 1396:4-7; Bland Tr. 883:8-17; Lambert Tr. 1871:3-8.
654. CHDC’s substandard medical services cause this high death rate from aspiration pneumonia. CHDC’s clinicians recommend use of hospice services before the illness appears to be terminal. Mikkelsen Tr. 3772:23-3773:6. CHDC’s clinicians recommend use of hospice for non-terminal respiratory illnesses. Mikkelsen Tr. 3773:7-15. Dr. Eldon Schulz, medical director of the Arkansas Division of Developmental Disabilities, testified that aspiration pneumonia is
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“absolutely not” normally a terminable condition that would cause someone to seek hospice care. Schulz Tr. 6187:4-7. CHDC physician, Dr. Parmley, admitted that aspiration pneumonia is a “treatable condition” that should not lead to death, unless it was not caught early or treated properly. Parmley Tr. 5453:10-18. Dr. Parmley admitted that CHDC residents have died following hospitalization, with an admission diagnosis of aspiration pneumonia. Parmley Tr. 5453:18-24.
XI. CONCLUSIONS OF LAW – MEDICAL CARE CHDC residents have a constitutional right to medical services to help maintain or
improve functions and to prevent harm from serious medical conditions. See Youngberg, 457 U.S. at 315, 324 (an institutionalized person has a constitutionally protected right to adequate medical care). A facility for individuals with developmental disabilities must provide these medical services through qualified and trained staff, both at a professional and direct care level. Id. at 323 n.30 (even for day-to-day matters, untrained staff should be supervised by a qualified professional).
Defendants’ deficient medical care has harmed CHDC residents, in violation of their constitutional rights, by failing to provide medical services to address their serious medical needs. Defendants have not provided the minimum level of treatment required to address CHDC residents’ serious medical needs. Medical care at CHDC is hierarchical, with heavy reliance on the identification of issues by unqualified direct care staff, and inadequate access to care from qualified professionals. The barriers in place mean that many residents with serious needs do not receive necessary treatment until after their conditions have already deteriorated. Professional staff do not address serious conditions in an interdisciplinary and effective manner. Instead, a
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TABLE OF CONTENTS - PHYSICAL AND NUTRITIONAL MANAGEMENT XII. FINDINGS OF FACT – PHYSICAL AND NUTRITIONAL
MANAGEMENT.. ........................................................................................................ 224 A. Expert Carly Crawford Provided Credible Expert Testimony of CHDC’s
Deficiencies in Physical and Nutritional Management............................................. 224 B. CHDC’s Substantial Departure from Generally Accepted Professional
Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Choking. .......................................................................................... 226 C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Aspiration Pneumonia. .................................................................... 232 D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Fractures. ......................................................................................... 239 E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Pressure Ulcers. ............................................................................... 242 XIII. CONCLUSIONS OF LAW – PHYSICAL AND NUTRITIONAL MANAGEMENT .......................................................................................................... 244
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XII. FINDINGS OF FACT – PHYSICAL AND NUTRITIONAL MANAGEMENT 655. Defendants subject CHDC residents to harm, and unreasonable risk of harm, from physical and nutritional management services that substantially depart from generally accepted minimum professional standards. CHDC residents suffer abnormally high rates of choking, aspiration pneumonia, bone fractures, and skin pressure sores. CHDC’s failure to implement and monitor the residents’ physical and nutritional management plans, provide adequate competencybased training, and provide a complete or timely response to incidents, puts CHDC residents at an unreasonable risk for choking, aspiration pneumonia, bone fractures, and skin pressure sores. See FOF ## 656-713.
A. Expert Carly Crawford Provided Credible Expert Testimony of CHDC’s Deficiencies in Physical and Nutritional Management.
656. Expert witness Carly Crawford evaluated CHDC’s provision of physical and nutritional management and therapy services, including occupational therapy, physical therapy, and speechlanguage pathology. Crawford Tr. 2740:9-13. 657. Ms. Crawford’s extensive experience in physical and nutritional management qualifies her to evaluate CHDC. US Ex. 952. She is a licensed occupational therapist, with an undergraduate degree in deaf education and a master’s degree in occupational therapy. Crawford Tr. 2743:6-23. Ms. Crawford has education and experience in health systems, anatomy, physiology, and health risks related to physical and nutritional management, speech-language pathology, and physical therapy. Crawford Tr. 2742:21-2743:4; US Ex. 952. She has lectured, conducted workshops, and provided clinical instruction in physical and nutritional management. Crawford Tr. 2745:10-13; US Ex. 952. Ms. Crawford has worked extensively as a consultant
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(on behalf of states and the Department of Justice), provided technical assistance, and acted as a court monitor in the area of physical and nutritional management. She has provided expert consultation to at least 32 ICF/MR facilities in 19 different states. Crawford Tr. 2747:9-22. 658. Ms. Crawford toured CHDC initially in 2003, then again in July and September of 2009. Crawford Tr. 2741:18-24. During her review, Ms. Crawford interviewed CHDC staff, reviewed extensive documents, and observed and interacted with CHDC residents. Crawford Tr. 2752:222753:7; 2753:22-2754:11; 2755:18-2756:14. 659. As a result of her review, Ms. Crawford concluded that CHDC has major deficiencies causing residents to suffer preventable harm from choking incidents, aspiration pneumonia, bone fractures, and skin pressure ulcers. Crawford Tr. 2756:18-2757:1. CHDC’s deficient practices regarding staff implementation of physical and nutritional management plans, training, and monitoring caused these harms. Crawford Tr. 2756:18-2757:4. 660. CHDC’s practices with regard to choking, aspiration pneumonia, bone fractures, and skin pressure ulcers violate generally accepted minimum professional standards because CHDC staff fail to: (1) properly implement the residents’ physical and nutritional management plans; (2) monitor staff implementation and effectiveness of the plans; (3) provide adequate competency-based training; and (4) provide a complete or timely response to incidents. Crawford Tr. 2757:5-16, 2897:1-17; see also Crawford Tr. 2751:20-2752:1 (defining generally accepted minimum professional standards). These failures resulted in harm, and unnecessary risk of harm to residents, as demonstrated by the high numbers of incidents of choking, aspiration pneumonia, fractures, and pressure ulcers. Crawford Tr. 2897:18-22.
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B. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Choking.
661. CHDC has a “shocking” number of choking incidents for a facility of its size. Crawford Tr. 2768:10-17, 2897:18-22. In the first 9 months of 2009, at least 13 CHDC residents suffered choking incidents. Crawford Tr. 2767:15-21. Previous years also showed shockingly high numbers, with 18 CHDC choking incidents in 2008, and 24 in 2007. Crawford Tr. 2767:5-14; US Ex. 986. Other facilities have significantly less choking incidents. Crawford Tr. 2768:10-24. 662. CHDC’s substantial departure from generally accepted professional standards requiring that direct care staff properly implement the residents’ eating plans, that CHDC monitor direct care staff’s implementation of the plans, that CHDC employ competency-based training on eating plans, that CHDC accurately document eating plans, and that CHDC take timely remedial steps, caused resident harm, and increased risk of harm, from choking and aspiration. See FOF ## 663-697. 663. CHDC’s high number of choking incidents results from CHDC staff failing to implement the residents’ eating plans as the plans are written by the professional therapist staff. Crawford Tr. 2769:5-10. 664. Deficiencies in direct care staff training and lack of direct care staff monitoring cause CHDC’s failure to implement the plans consistently. Crawford Tr. 2769:5-25, 2771:17-18. 665. CHDC employs substandard, non-competency-based staff training on mealtime safety plans. Crawford Tr. 2771:19-20. Competency-based training requires, inter alia, staff to demonstrate that they can actually perform the skill. Crawford Tr. 2772:22-2773:1.
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666. CHDC speech-language pathologist Cynthia Johnson confirmed that unit supervisors, rather than professional staff, are responsible for training direct care staff on mealtime safety plans. C. Johnson Tr. 5398:8-25, 5425:18-5426:12. Professional staff merely train the unit supervisors, and currently, this training is not competency based. C. Johnson Tr. 5398:2-7, 5425:18-5426:10. 667. Staff who assist residents with eating need skill-competency-based training on mealtime safety plans to minimize the individual resident’s risk of choking, aspiration, or death. Crawford Tr. 2771:19, 2771:23-2772:4. Competency-based training ensures that staff can demonstrate performance of the particular skills outlined in the resident’s mealtime safety plan. Crawford Tr. 2771:19, 2772:5-12. 668. Professional staff’s monitoring of direct care staff reduces the risk of resident harm by ensuring that direct care staff are correctly implementing the mealtime safety plans and by facilitating coaching to address plan implementation deficiencies. Crawford Tr. 2773:14-17, 2774:16-18, 2847:22-23, 2848:8-22. This monitoring also enables professional staff to assess how the mealtime system is functioning and identify weaknesses. Crawford Tr. 2773:14-17, 2774:18-2775:9. 669. Defendants’ occupational therapy consultant agreed that direct care staff should be trained on the specific programs for individuals in their care, which should include some level of supervisor observation to ensure that the staff are complying with treatment plans. Schmeler Tr. 3508:7-24.
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670. Due to inadequate training and lack of monitoring, CHDC direct care staff demonstrated an inadequate understanding of, and the inability to follow, residents’ mealtime safety plans. Crawford Tr. 2773:2-11. 671. For example, in June 2007, CHDC resident VB choked on pizza rolls in her living unit. Crawford Tr. 2775:22-2776:5; US Ex. 1017. VB was prescribed a blended diet because she does not chew her food and tends to swallow pieces of food whole. Crawford Tr. 2776:6-13. When CHDC staff found that VB had stuffed pizza rolls into her mouth, the staff offered VB water before assessing if VB was choking or taking emergency measures. Crawford Tr. 2776:14-15, 2776:21-23. This incident demonstrated that CHDC staff were not properly supervising VB and were not able to properly implement VB’s mealtime safety plan. Crawford Tr. 2777:2-11. Offering water to an individual on a blended diet who had food in her mouth is “the last thing” that staff should have done because water could have caused the food to lodge in VB’s trachea. Crawford Tr. 2777:2-3, 2777:7-11, 2777:19-2778:3. By offering VB water before taking proper emergency precautions, CHDC staff violated minimum professional standards and put VB at great risk of harm. Crawford Tr. 2778:4-8. 672. Similar to the VB incident above, in June 2007, CHDC resident LB choked on a piece of meat at lunch. Crawford Tr. 2778:14-23; US Ex. 1019. LB was alone at a table. When another resident sat down, LB grabbed a piece of meat off the other resident’s plate and put it in her mouth. Crawford Tr. 2779:1-8. Staff gave LB the liquid “Ensure” to wash the meat down and, after the liquid ran back out of LB’s mouth, performed the Heimlich maneuver. Crawford Tr. 2779:9-16. Although LB suffered no permanent harm, the “risk of death was very imminent.” Crawford Tr. 2779:1-2, 2779:19-20. LB’s mealtime safety plan specifically stated that she
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attempts to take food, particularly diced or textured foods, from other people and that she had a history of choking on these foods. Crawford Tr. 2779:19-2780: 6. The mealtime safety plan also stated that LB was on a blended diet, should be carefully monitored at meals, should only be seated with other individuals with blended or chopped foods, and should be escorted from the dining room. Crawford Tr. 2780:9-14. Resident LB’s Quick Reference Guide (“QRG”), however, contained information only about LB being escorted from the dining room. Crawford Tr. 2781:3-5. This example illustrates CHDC staff’s failure to implement a mealtime safety plan as written, staff’s poor supervision of residents, and CHDC’s inconsistent guidance to staff regarding a resident’s risks that would allow staff to protect CHDC residents from harm, such as choking. Crawford Tr. 2781:12-18. 673. On August 4, 2009, CHDC resident JR “strangled on rice, coughing with such force that he vomited.” Crawford Tr. 2784:11-21; US Ex. 988. The therapist noted that although staff are supposed to sit with JR during his meals due to his tendency to eat rapidly and stuff food into his mouth, the therapist could not determine if staff were sitting with JR during the incident. Crawford Tr. 2784:11-12, 2784:11-25-2785: 4. The CHDC dietician did not notify the speechlanguage pathologist of the incident for 6 days, and the speech-language pathologist did not conduct a post-event observation of JR until 7 days after the choking. Crawford Tr. 2788:5-13. A speech-language pathologist should evaluate a choking victim before his next meal so that staff can implement strategies and changes to protect the resident from another choking episode. Crawford Tr. 2789:2-10. JR’s interdisciplinary team did not meet for a special staffing regarding the incident until 9 days after JR choked. The interdisciplinary team should meet within 24 hours of a choking event to discuss what occurred, determine if assessments need to be done, and
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provide timely follow-up. Crawford Tr. 2786:17-2787:5. Despite the fact that JR had known tendencies to eat too fast and stuff food into his mouth, the interdisciplinary team did not discuss any strategies or possible interventions to address those tendencies to attempt to reduce JR’s risk of choking. Crawford Tr. 2787:12-2788:4. This example illustrates CHDC’s staff failure to implement a mealtime safety plan as written, inadequate training on the mealtime safety plan, and substandard remedial action. Crawford Tr. 2789:14-2790:7. 674. On October 8, 2008, CHDC resident FJ experienced a choking event. Crawford Tr. 2790:18-20; US Ex. 1022. The speech-language pathologist did not conduct a post-choking observation of FJ for 5 days, and FJ’s interdisciplinary team waited 6 days to hold a special staffing. Crawford Tr. 2793:10-12. On October 29, 2008, FJ’s interdisciplinary team wrote that FJ should receive a swallow study in the next 45 days. Crawford Tr. 2791:8-13. A swallow study is an important assessment tool to determine problems, which may not be clear during a visual assessment, that an individual is experiencing with swallowing, chewing, potential aspiration, or difficulty delivering food to the esophagus. Crawford Tr. 2791:20-25-2792:2. When prompted by a choking event, the swallow study should occur quickly—anywhere from two days to two weeks. Crawford Tr. 2792:13-20. By allowing 66 days before a swallow study was required for FJ, CHDC violated generally accepted minimum professional standards. Crawford Tr. 2792:13-20. This incident also demonstrates substandard, untimely follow-up by the speech-language pathologist and FJ’s interdisciplinary team. Crawford Tr. 2794:10-12. 675. On August 16, 2009, CHDC resident HO coughed and spit up some meat and bread during lunch. Crawford Tr. 2795:20-24; US Ex. 987. CHDC staff were supposed to position HO appropriately in his wheelchair during meals due to his medical diagnosis of GERD.
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Crawford Tr. 2796:3-22. During this near choking event, however, CHDC staff had seated HO in a recliner while assisting HO to eat. Crawford Tr. 2795:20-2796: 2. After staff’s failure to follow HO’s plan, CHDC should have conducted an in-service training to explain why HO is at risk, why eating in the recliner is dangerous for HO, and to emphasize the importance of HO’s proper alignment in the wheelchair during meals. Crawford Tr. 2797:3-17. Generally accepted minimum professional standards require that such training be competency-based to allow staff to demonstrate that they understand and can actually implement HO’s mealtime safety plan. Crawford Tr. 2797:21-23, 2800:9-16. Instead, CHDC merely asked HO’s staff to read and sign a statement that reminded them that HO should eat while seated in his wheelchair. Crawford Tr. 2798:1-4; 2799:10-24. Moreover, CHDC did not provide this substandard training timely after the choking. Crawford Tr. 2799:3-9. CHDC did not implement this substandard training until four days after the choking, and even more unacceptable, some staff did not even sign the statement until almost a month after the incident. Crawford Tr. 2798:4-9. 676. HO experienced another coughing/choking event at breakfast less than a month later in September 2009. Crawford Tr. 2801:7-10; US Ex. 987. Although HO had two events in a month’s time, CHDC kept HO’s choking risk level at “low.” Crawford Tr. 2802:22-2803:6. CHDC instituted no additional monitoring or different strategies after the first incident, which could have prevented or minimized the second incident. Crawford Tr. 2802:4-21. 677. In January 2008, CHDC resident AR died of respiratory failure following a choking incident. Crawford Tr. 2803:18-2804:13; US Ex. 1023. CHDC staff left AR in the dayroom unsupervised, and then found AR on the kitchen floor with her mouth full of bologna. Crawford Tr. 2804:1-9. AR was prescribed a “diced diet” and had a history of filling her mouth too full,
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eating fast, and swallowing without chewing. Crawford Tr. 2805:1-2806:1. CHDC also knew of two other incidents in the past year where AR had gone into the kitchen and grabbed food. Crawford Tr. 2806:4-7. AR died because CHDC staff failed to sufficiently supervise her. Crawford Tr. 2808:22-25. Beyond the tragic death, this example shows that CHDC failed to train staff sufficiently to understand AR’s need for ongoing supervision to ensure that she did not take food from the kitchen. Crawford Tr. 2811:6-13. Despite the serious and tragic nature of AR’s death, the Central Dysphagia Committee’s meeting minutes note only that AR “expired as a result of choking.” This quality assurance/improvement committee made no indication of any further evaluation of the incident or any discussion of systems changes, training, or monitoring that CHDC could institute to avoid future deaths and serious harms. Crawford Tr. 2808:152809:7; US Ex. 1052. CHDC’s failure to take precautions to minimize AR’s risk of harm, and the Dysphagia Committee’s inadequate reaction, mark a significant departure from minimum acceptable professional standards. Crawford Tr. 2809:8-10, 2811:1-5. 678. To keep residents safe from risks of choking and aspiration, CHDC must adhere to generally accepted minimum professional standards, which require competency-based training, consistent monitoring and review, informal spontaneous coaching, staff diligence to follow the mealtime safety plans, and consistency in the paperwork that outlines the risks and plan for staff. Crawford Tr. 2848:23-2849:22.
C. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Aspiration Pneumonia.
679. Many CHDC residents die or are hospitalized for aspiration pneumonia, respiratory failure, or other pneumonia-related or respiratory-related causes. CHDC’s substantial departure
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from generally accepted professional standards that require CHDC to timely review pneumonia related cases, CHDC direct care staff to properly implement residents’ eating plans, CHDC to properly train and monitor direct care staff, and CHDC to keep accurate, consistent documentation of residents’ safety precautions, puts residents at an increased risk of harm from aspiration pneumonia. See FOF ## 680-697 . 680. CHDC residents suffer from a significant number of pneumonia cases. Crawford Tr. 2819:21-2820:2. Indeed, almost two-thirds of CHDC’s deaths are due to pneumonia or aspiration pneumonia. Mikkelsen Tr. 3772:10-22. This rate is unusually high. Mikkelsen Tr. 3776:11-16, 3774:12-18, 3777:4-24 (comparing to Massachusetts rate of approximately 9-12% for the years 2002-2007). In a 2-year period, from approximately June 2007 through June 2009, 17 CHDC residents died of aspiration pneumonia, respiratory failure, or other pneumonia-related or respiratory-related causes. Crawford Tr. 2814:19-25. Many of these residents were extremely young to die from respiratory conditions. Crawford Tr. 2815:1-4. By comparison, the community providers testified that they could not remember any of their clients ever dying from aspiration pneumonia. Bland Tr. 883:8-17; Alberding Tr. 1396:4-7; Lambert Tr. 1871:3-8. 681. From June 2007 to July 2009, CHDC hospitalized 60 residents for pneumonia or aspiration pneumonia. Crawford Tr. 2817:14-25; US Ex. 1037. 682. Beyond the risk of death, CHDC residents suffering repeated episodes of pneumonia are at risk of harm because the repeated pneumonias compromise the residents’ ability to exchange air and desensitize the residents to incidents of aspiration. Crawford Tr. 2822:2-17. 683. Generally accepted professional standards dictate that a facility’s dysphagia review committee should thoroughly review any instance of pneumonia to evaluate all of the other
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health risk indicators that may be complicating the resident’s health, to determine if the facility should implement strategies to either prevent or minimize the risk of future pneumonias, and to address the immediate needs of a resident who is coming back from the hospital who may need special positioning, supports, or attention at mealtime. Crawford Tr. 2820:3-19. The facility should clearly plan how professional staff and direct care staff will collaborate to ensure that the resident stays safe and recovers following discharge from the hospital. Crawford Tr. 2820:1224. 684. Contrary to these generally accepted practices, CHDC’s Central Dysphagia Committee did not begin to review individual cases of pneumonia until January 2009. Crawford Tr. 2820:38. 685. Even now, the Central Dysphagia Committee reviews individuals with chronic pneumonia only once per year. Crawford Tr. 2764:20-21, 2765:18-19. CHDC should review residents at high risk for pneumonia, or with repeated occurrences of pneumonia, frequently throughout the year. Crawford Tr. 2765:20-2766:3, 2823:11-24. The Central Dysphagia Committee does not meet frequently enough and does not meet on a timely basis following significant dysphagia events. Crawford Tr. 2765:6-15, 2766:3-8. 686. CHDC fails to meet generally accepted minimum professional standards for minimizing aspiration pneumonia risk by failing to adequately train staff to adequately implement mealtime safety plans, recognize aspiration risks, and employ strategies to prevent or minimize residents’ aspiration. Crawford Tr. 2823:7-18; see also L. Henderson Tr. 6428:16-18 (CHDC Dysphagia Committee chairwoman’s statement that CHDC nurses do not proactively monitor residents with repeated pneumonia to “catch signs and symptoms before pneumonia.”)
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687. CHDC further fails to meet generally accepted minimum professional standards for minimizing aspiration pneumonia risk by failing to have professional staff properly monitor whether treatment plans meet the residents’ needs and whether staff implement the plans correctly. Crawford Tr. 2823:11-24. 688. Improper positioning puts CHDC residents at risk for gastroesophageal reflux (“GERD”), difficulty swallowing, and aspiration. Crawford Tr. 2824:16-24. Customizing wheelchairs and proper positioning devices help residents by improving posture alignment, pressure management, body function, comfort, bowel and bladder management, and pain reduction. Schmeler Tr. 3485:18-3486:18. Defendants’ consultant agreed that proper wheelchair fit makes up a “critical part” of a treatment plan and proper alignment is important during and outside of meal times. Schmeler Tr. 3501:2-9; L. Hancock Tr. 5277:7-16. 689. CHDC’s physical therapy supervisor admitted that CHDC has no policy or formal process of monitoring residents’ positioning and that the physical therapy department does not monitor residents during meals. L. Hancock Tr. 5294:15-21, 5303:25-5304:3, 5306:18-23. The physical therapy department also performs no monitoring of after-meal positioning to ensure proper precautions against GERD. L. Hancock Tr. 5305:22-25. The only monitoring the physical therapists perform are informal “spot checks.” L. Hancock Tr. 5294:9-5295:9. In addition, beyond the new employee orientation training, the physical therapy department has not provided any formal training on positioning in recent years. P. Hackett Tr. 4845:23-25, 4846:84847:8. 690. CHDC often fails to position residents correctly. Crawford Tr. 2825:3-17. Ms. Crawford observed staff allow improper positioning of many CHDC residents during and outside of meal
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times. Crawford Tr. 2825:13-17. This improper positioning demonstrates that CHDC direct care staff fail to position residents according to the residents’ positioning plans as prescribed by the professional staff. Crawford Tr. 2952:13-2953:3. 691. Ms. Crawford testified to several examples of staff allowing residents to eat in dangerous improper positions. Ms. Crawford observed CHDC resident JS eating in the cafeteria. Crawford Tr. 2828:10. During the entire meal, JS sat slumped way over in her wheelchair with her head off to the right side over the armrest. Crawford Tr. 2828:6-12. A CHDC staff member assisted JS to eat in this improper position without ever attempting to reposition JS to correct her posture or alignment. Crawford Tr. 2828:19-24. JS was hospitalized for aspiration pneumonia both before (from November 19-December 3, 2008) and after (from November 29-December 17, 2009) Ms. Crawford observed JS’s improper positioning. Crawford Tr. 2827:13-24; US Exs. 1051-6 & 1051-7. JS was also showing signs and symptoms of decline, dementia, and Alzheimer’s. Crawford Tr. 2828:25-2829:2. Because these factors put JS at risk for aspiration, the staff member should have stopped the meal and repositioned JS. Crawford Tr. 2829:1-7. 692. In July 2009, Ms. Crawford also observed CHDC resident JG improperly positioned during a meal. Crawford Tr. 2829:16-19, 2830:8-12. JG was leaning off to the side, with no foot support, and her head turned and back in hyperextension throughout the meal. Crawford Tr. 2829:16-19, 2830:8-12. JG’s mealtime safety plan stated that she was to be upright in her wheelchair for meals and identified her as being at high risk for choking and aspiration. Crawford Tr. 2831:15-19. The staff did not adjust JG’s position, did not modify his own position to make eating easier for JG, and did not direct the spoon in a way that would help JG turn her head to be better aligned. Crawford Tr. 2829:16-19, 2830:12-17. JG’s example
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demonstrates CHDC’s poor staff training and lack of staff supervision. Crawford Tr. 3831:1323. 693. In September 2009, Ms. Crawford observed JG again and saw that she was seated with a four-to six-inch gap between her pelvis and the back of the chair. Crawford Tr. 2829:16-18, 2830:23-25. Because of this gap, the wheelchair was not providing JG with adequate postural support. Crawford Tr. 2831:3-5. This poor positioning violates both CHDC’s guidelines and generally accepted minimum professional standards. Crawford Tr. 2830:25-2831:3. 694. Ms. Crawford also observed staff improperly position another resident, SB, in September 2009. Crawford Tr. 2833:6-17. Resident SB’s mealtime safety plan states that staff should assist her to eat with her head “at midline,” so she does not need to turn or lift her head when eating. Crawford Tr. 2832:1-23. In July 2009, CHDC staff fed SB while standing on her right and holding SB’s forehead so that her head was turned to the right and pushed back into hyperextension, which increases SB’s risk of aspiration. Crawford Tr. 2832:12-18. Ms. Crawford observed SB make an “effortful” swallow during that meal. Crawford Tr. 2832:7-12. During another meal, staff provided SB with liquids that were not thickened to the proper consistency outlined in SB’s mealtime safety plan. Crawford Tr. 2833:18-2834:1. CHDC’s failure to ensure that SB is fed in the correct position and provided with liquids at the correct consistency heightened SB’s risk of aspiration. Crawford Tr. 2834:19-22. The supervisor in SB’s living unit stated that any staff member working with a resident should have read the resident’s mealtime safety plan and signed the training record to confirm such review prior to assisting the resident with meals. Crawford Tr. 2834:2-6. The staff member who was assisting SB was not listed on SB’s training sheet, and no other evidence indicated that the staff had read
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or received any training regarding SB’s mealtime safety plan. Crawford Tr. 2834:7-11. This example demonstrates that CHDC fails to meet generally accepted minimum professional standards because staff are not following the residents’ mealtime safety plans and that the lack of competency-based training regarding the mealtime safety plans is placing residents at risk of harm. Crawford Tr. 2834:14-2835:8. 695. In addition to SB, staff put other CHDC residents at risk for choking and aspiration by failing to properly thicken liquids according to residents’ eating safety plan. For example, Ms. Crawford witnessed CHDC classroom staff preparing a beverage at the wrong consistency for resident BC. Crawford Tr. 2837:19-2838:4. Although the staff member thickened BC’s beverage to only “nectar” thick, instead of “pudding” thick as BC’s mealtime safety plan required, no other CHDC staff intervened. Crawford Tr. 2838:3-6. Because nectar thick liquids are dangerous for BC, Ms. Crawford intervened by asking the staff about the correct consistency; the staff needed to consult the mealtime safety plan to learn that BC required a pudding thick consistency. Crawford Tr. 2838:8-13. Even then, the staff still was unable to thicken BC’s beverage correctly. Crawford Tr. 2838:12-22. Ms. Crawford also observed CHDC resident VW drinking “thin” liquids even though VW was prescribed “honey” thick liquids, presented a high risk for choking, and had already experienced two choking events that year. Crawford Tr. 2843:14-21. These examples further demonstrate that CHDC fails to meet generally accepted minimum professional standards because the lack of competency-based training, poor supervision, and insufficient monitoring of staff implementation of mealtime safety plans result in CHDC staff who do not or cannot follow the residents’ mealtime safety plans, which places residents at risk of harm. Crawford Tr. 2839:17-2840:18, 2843:22-2844:4.
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696. In another example of staff not adhering to mealtime safety plans, Ms. Crawford observed resident DL quickly eating his breakfast in just seven minutes. Crawford Tr. 2845:192846:1. Although CHDC has identified DL as at “high risk” for choking and DL’s mealtime safety plan specifically stated that he should eat at a slow pace, take small bites, and receive encouragement to alternate each bit of food with fluids, no CHDC staff intervened to redirect him or encourage a slower pace. Crawford Tr. 2846:1-6. This example demonstrates CHDC’s departure from generally accepted minimum professional standards and the resulting higher risk of a dangerous choking or aspiration event for DL. Staff should have intervened to properly implement DL’s mealtime safety plan and prevent a high risk resident from eating too fast. Crawford Tr. 2846:12-22. 697. CHDC also puts residents at risk of harm by inconsistently documenting residents’ eating safety precautions. Multiple discrepancies existed between residents’ QRGs and their eating plans, both of which should provide consistent information to staff on a resident’s eating precautions. Crawford Tr. 2780:2, 2781:1-9, 2844:5-21. These discrepancies result in risk of harm to residents from staff confusion and incorrect plan implementation. Crawford Tr. 2781:59. Generally accepted minimum professional standards require that CHDC use consistent and accurate documentation. Crawford Tr. 2847:7-9.
D. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Fractures.
698. CHDC residents identified as at greater risks for bone fractures still suffer an alarming number of fractures, with many suffering multiple fractures. CHDC’s substantial departure from generally accepted professional standards requiring that staff give heightened attention to
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“high risk” residents, that CHDC provide accurate, consistent fracture risk information to staff caring for the residents, and that CHDC provide staff with in-depth and comprehensive training results in fractures, and an increased risk of fractures. See FOF ## 699-706. 699. Many CHDC residents are at an increased risk for bone fractures due to osteoporosis or osteopenia, balance problems, or issues with aggressive behavior. Crawford Tr. 2851:22-2852:6. 700. CHDC identified approximately 373 residents as being at “greater risk” for fractures, designating 191 of those residents at “high risk” and the remaining residents as “increased risk” for fractures. Crawford Tr. 2852:23-2853:21; US Ex. 953-1. CHDC residents identified as greater risks still suffer an alarming number of fractures. 701. From June 2007 through September 2009, 24 CHDC residents identified as at “increased risk” for fractures suffered 31 fractured bones. Crawford Tr. 2855:24-2856:2; US Ex. 997. Five of those individuals suffered multiple fractures during that time. Crawford Tr. 2855:13-19. 702. Although resident HCT had experienced 17 fractures since March 1993, including 4 from June 2007 through September 2009, CHDC designated her only as being at “increased risk” for fractures, rather than “high risk.” Crawford Tr. 2858:19-2859:20. 703. From June 2007 through September 2009, 20 CHDC residents identified as at “high risk” for fractures experienced 24 fractures, including at least 2 residents with multiple fractures. Crawford Tr. 2860:9-15. Staff should have a heightened awareness of individuals who have been designated as being at “high risk” for fractures and should pay particular attention to protect those individuals from risk of injury due to fractures. Crawford Tr. 2861:1-8. 704. From June 2007 through September 2009, 20 CHDC residents who use wheelchairs as their primary form of mobility experienced fractures. Crawford Tr. 2863:2-7. During the same
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time, 13 CHDC residents who use wheelchairs for longer distance transport suffered fractures. Crawford Tr. 2863:8-9. These residents with limited mobility depend on CHDC staff and require staff attention and assistance for tasks such as bathing and transferring to and from bed. Crawford Tr. 2863:11-25. 705. CHDC fails to provide accurate, consistent fracture risk information to staff. To provide safe care, generally accepted minimum professional standards require that CHDC provide staff with correct information about the accurate risk levels assigned to each resident. Crawford Tr. 2864:1-10. When comparing the QRGs with the “greater risk” for fractures list, Ms. Crawford found that 88 residents who were identified as being at “increased” or “high” risk for fractures had no fracture risk included in their QRGs, and an additional 39 residents had inconsistencies between the QRG and the fracture list. Crawford Tr. 2865:11-21. Tellingly, despite resident HCT’s serious history of 17 fractures, HTC’s QRG contained no information regarding fracture risk. Crawford Tr. 2865:22-25. 706. On October 25, 2007, CHDC resident KB was screaming and crying when CHDC staff moved her and provided her personal care, and KB had been fussy for several days. Crawford Tr. 2867:13-20; US Ex. 21-3. Despite an x-ray revealing KB suffered pain from a fractured femur, the CHDC doctor did not treat the femur fracture as a medical emergency. CHDC merely admitted KB to the infirmary and scheduled a surgery for nearly a month later, on November 19, 2007. Crawford Tr. 2867:23-2868:5. Although KB had been “hollering continuously and crying,” none of the six staff who worked with her observed any injury to KB. Crawford Tr. 2868:6-14. CHDC found that the exact cause of the injury could not be determined. Crawford Tr. 2868:18-21. Despite the seriousness of KB’s fractured femur, CHDC’s response was only to
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provide 14 CHDC staff members with a 5-minute in-service training on careful handling of residents when providing personal care, bathing, lifting, or positioning. Crawford Tr. 2868:152869:8. Generally accepted minimum professional standards require a much more in-depth and comprehensive training to adequately address the risks to KB and proper techniques for avoiding future injuries. Crawford Tr. 2869:9-2870:20.
E. CHDC’s Substantial Departure from Generally Accepted Professional Standards of Physical and Nutritional Management Results in Harm to CHDC Residents from Pressure Ulcers.
707. CHDC residents suffer from an unacceptably high rate of skin pressure ulcers/sores. CHDC’s substantial departure from generally accepted professional standards requiring that direct care staff reposition residents in adherence with residents’ prescribed positioning plans, that staff accurately document implementation of the positioning plans, and that CHDC professional staff adequately monitor and properly train direct care staff to implement the plans correctly, causes CHDC residents to suffer harm, and increased risk of harm, from pressures sores. See FOF ## 708-713. 708. Approximately 200 CHDC residents are at a high risk for pressure ulcers because of their diminished mobility and reliance on staff for repositioning. Crawford Tr. 2876:16-2877:8, 2878:15-18. Forty-six CHDC residents suffered 77 incidents of pressure sores from June 2007 through September 2009. Crawford Tr. 2874:23-2875:2; US Ex. 998. This rate is high compared to other similar facilities. Crawford Tr. 2875:17-19. Even a 14-18% rate of pressure sores is considered high by professional associations. Schmeler Tr. 3490:10-3491:3. Defendants’ consultant testified that a facility should be expected to take steps to reduce such a high rate. Schmeler Tr. 3491:2-4.
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709. Seventeen CHDC residents had multiple episodes of pressure ulcers during this same two-year period, each of whom were considered to be non-ambulatory and were seated in a wheelchair for their primary means of mobility. Crawford Tr. 2878:4-14. 710. CHDC staff fail to properly reposition residents to prevent pressure sores. Generally accepted minimum professional standards require staff to reposition non-ambulatory individuals who are dependent upon others for positioning at least every two hours for adequate pressure relief. Crawford Tr. 2880:5-12; Schmeler Tr. 3510:10-14. Most CHDC individual positioning plans contain identical recommendation for 2 to 3 periods of scheduled positioning per day of 30 to 45 minutes. Crawford Tr. 2884:2-11. The CHDC logs that document individuals’ positioning, however, revealed that CHDC staff fail to reposition many residents in adherence to the residents’ positioning plans and CHDC direct care staff are not implementing the positioning plans as written. Crawford Tr. 2886:19-2887:17. In addition, although residents’ needs are not confined to weekdays, CHDC staff do not implement the positioning plans on the weekends. Crawford Tr. 2887:4-10. Defendants’ consultant testified that a staff’s failure to comply with repositioning plans would constitute a violation of generally accepted minimum professional standards. Schmeler Tr. 3510:21-3511:5. 711. For example, even though resident DB’s positioning plan states that she should be in her wheelchair for extended periods of time throughout the day and have 2 to 3 periods of scheduled positioning per day of 30 to 45 minutes, the log indicated that she was in her wheelchair only 15 times during a 3 month period. Crawford Tr. 2891:7-15; US Ex. 994. DB suffered from pressure sores in October 2008 and July, August, and September 2009. Crawford Tr. 2891:242892:15. At least six other residents on DB’s unit suffered similar harms from pressure sores.
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Crawford Tr. 2893:10-18. A CHDC staff member in that unit admitted that staff only position the residents in their wheelchairs when the resident is going to class. Crawford Tr. 2894:8-14. To remedy this deficiency, generally accepted minimum professional standards require that CHDC properly train staff to ensure that they can implement the plans correctly and that CHDC adequate monitor staff so that errors can be caught and corrected. Crawford Tr. 2894:16-22. 712. In another case reviewed by Defendants’ own consultant, discrepancies existed between therapy staff recommendations and the individual’s actual treatment plan and treatment logs. Schmeler Tr. 3498:22-25. For instance, the therapy staff’s annual report noted treatment recommendations that did not appear in the resident's positioning plan. Schmeler Tr. 3499:3-7. Defendants’ consultant opined that such inconsistencies would be a substantial departure from generally accepted minimum professional standards. Schmeler Tr. 3499:8-11. 713. Generally accepted minimum professional standards require accurate documentation to demonstrate that staff are implementing the residents’ positioning plans. Crawford Tr. 2896:5-8. The CHDC physical therapy supervisor, however, confirmed that the CHDC physical therapists do not review any of the positioning documentation logs to confirm that staff are implementing the residents’ individual positioning plans. Crawford Tr. 2894:22-24. The physical therapy supervisor testified that no one at CHDC specifically confirms that each staff member is trained on the positioning plans of the residents with whom they work. L. Hancock Tr. 5299:10-13.
XIII. CONCLUSIONS OF LAW – PHYSICAL AND NUTRITIONAL MANAGEMENT
Defendants violate the Constitution with substandard physical and nutritional management services that subject residents to preventable harm from choking, aspiration
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pneumonia, bone fractures, and skin pressure sores. The Fourteenth Amendment guarantees CHDC residents the right to therapeutic services, to help maintain or improve functions and to prevent harm from serious medical conditions. See Youngberg, 457 U.S. at 315, 324 (holding an institutionalized person has a constitutionally protected right to reasonable safety, rehabilitation, and adequate medical care). Defendants violate CHDC residents’ right to adequate physical and nutritional management services if CHDC’s administration of these services “substantial[ly] depart[s] from accepted professional judgment, practice, or standards.” Id. at 322-23. CHDC must provide physical and nutritional management services by qualified and trained staff, both at a professional and direct care level. See id. at 323 n.30 (finding, even for day-to-day matters, that untrained staff should be supervised by a qualified professional).
Many CHDC residents have, or are at risk of developing, conditions such as airway obstructions, pneumonia, bone fractures, skin pressure sores, and other infections. CHDC’s unlawful physical and nutrition management practices substantially depart from generally accepted minimum professional standards that require: (1) direct care staff to properly implement the residents’ physical and nutritional management plans; (2) professional staff to monitor direct care staff implementation and effectiveness of the plans; (3) adequate, competency-based training; and (4) complete and timely responses to incidents. These substantial departures put CHDC residents at an unconstitutional risk of choking, aspiration pneumonia, bone fractures, and pressure sores.
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TABLE OF CONTENTS - SPECIAL EDUCATION
XIV. FINDINGS OF FACT – SPECIAL EDUCATION.................................................... 248
A. Expert Susan Thibadeau Provided Credible Expert Testimony That CHDC’s Education Program Violates Numerous IDEA Requirements.................................. 249
B. Arkansas’s State Educational Agency Issued Numerous Findings of IDEA NonCompliance at CHDC for This Monitoring Period................................................... 251
C. CHDC IEP Teams Do Not Include All Members Required by the IDEA................ 253 D. CHDC’s Special Education Instructional Time Is Inadequate. ................................ 255 E. CHDC IEP Goals and Objectives Fail To Meet IDEA Requirements...................... 260 F. CHDC Fails To Administer IDEA-Required Statewide and Districtwide
Assessments. ............................................................................................................. 262 G. CHDC Fails To Consider IDEA-Required Factors in Developing Students’
IEPs...... ..................................................................................................................... 264 H. CHDC Fails To Provide Related Services to All Students Who Require Them
To Benefit from Special Education Services. ........................................................... 265 1. CHDC Does Not Provide Adequate Communication/Audiology Services to Students. ..................................................................................... 268 2. CHDC Does Not Provide Adequate Psychology/Behavioral Services to Students......................................................................................................... 270
I. CHDC’s Transition Planning and Transition Services Do Not Satisfy IDEA Requirements. ........................................................................................................... 272
J. CHDC Fails To Educate Students in the Least Restrictive Environment, as Required by the IDEA. ............................................................................................. 276
K. CHDC Does Not Provide Adequate Teacher Training and Supervision.................. 282
XV. CONCLUSIONS OF LAW - SPECIAL EDUCATION ............................................ 284
A. CHDC’s Procedural IDEA Violations Deprive Students of Educational Opportunities............................................................................................................. 284 1. CHDC Does Not Offer Students a Full Continuum of Educational Placements, as Required by the IDEA. ......................................................... 286 2. CHDC Fails To Satisfy the IDEA’s Requirement That an LEA Representative and a Regular Education Teacher Attend IEP Meetings for CHDC Students. ...................................................................................... 288 3. CHDC IEPs Do Not Comply with the IDEA’s Requirement for Appropriate, Measurable Goals and Objectives. .......................................... 291 4. CHDC IEP Teams Fail To Consider IDEA-Required Factors in Developing Students’ IEPs. .......................................................................... 294 5. CHDC Fails To Ensure That CHDC Students Receive Regular or Alternate Statewide or Districtwide Assessments, as Required by the IDEA. ............................................................................................................ 295 6. CHDC Routinely Fails To Invite a Representative of the Agency or Agencies Likely To Provide Transition Services To Assist CHDC Youth in Transitioning to Postsecondary Educational Services or to a Less Restrictive Environment. ...................................................................... 296
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B. CHDC Students’ IEPs and Services Provided Therein Are Not Reasonably Calculated To Enable CHDC Students To Receive Educational Benefits. .............. 297 1. CHDC Students Are Not All Receiving Education and Extra-Curricular Activities in the Least Restrictive Environments Appropriate to Their Needs............................................................................................................. 298 2. CHDC Does Not Provide Related Services, Including Communication/Audiology and Behavioral/Psychology Services, to All Students Who Require Such Services........................................................... 302 3. CHDC Fails To Ensure That Hearing Aids Worn by Students with Hearing Impairments Are Functioning Properly, as Required by the IDEA. ............................................................................................................ 304 4. CHDC’s Provision of a Shortened School Day for All Students Violates the IDEA. ...................................................................................................... 305 5. CHDC’s Transition Planning and Transition Services Do Not Satisfy IDEA Requirements...................................................................................... 306 6. Education Staff Lack Adequate Training and Supervision To Appropriately Implement Students’ IEPs. .................................................... 307
C. CHDC’s Failure To Meet the Standards of the State Educational Agency Establishes an Independent Basis for Findings of IDEA Violations. ....................... 308
XVI. CONCLUSION ............................................................................................................. 310
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XIV. FINDINGS OF FACT – SPECIAL EDUCATION 714. The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., requires that every child with disabilities is provided a free appropriate public education (“FAPE”). To meet this obligation, the state must offer students special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.1 20 U.S.C. § 1400(d); 34 C.F.R. §§ 300.1, 300.17. 715. IDEA was enacted because “[a]lmost 30 years of research and experience ha[d] demonstrated that the education of children with disabilities can be made more effective by having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible.” 20 U.S.C. § 1400(c)(5)(A). 716. CHDC’s procedural and substantive violations of the IDEA deprive CHDC students of FAPE, as guaranteed by the IDEA. CHDC’s violations result in: (1) students’ continued isolation in the most restrictive educational environment, with unlawfully reduced instructional time; (2) cookie cutter individualized education programs (“IEPs”), that are not supported by adequate educational assessments and are not adequate to address students’ academic and functional needs; (3) denial of access to communication and audiology services, psychological/behavioral services, and other related services students need to access and benefit
1Arkansas receives federal funding under Part B of the IDEA, 20 U.S.C. § 1400 et seq., and thus is subject to the requirements of the IDEA and its implementing regulations, 34 C.F.R. pt. 300. Defs. Reply to Plaintiff’s Proposed Findings of Fact at 1 (declining to contest the United States’ Proposed Finding of Fact ¶ 173); Defs. Reply to Plaintiff’s Statement of Undisputed Facts, ¶ 67 [Dkt. 104]. Even if any of the Defendants in this case did not receive federal funds, Arkansas special education regulations apply to any public agency that provides special education and related services to children with disabilities, regardless of whether that agency is receiving funds under Part B of the IDEA. Ark. Admin. Code § 1.02.2.2.
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from educational services; (4) denial of access to adequate transition planning and services that would allow students to transition from post-secondary education to adult life; (5) exclusion of parties necessary at IEP meetings to ensure access to the general education curricula and the least restrictive educational setting; and (6) denial of access to statewide and districtwide assessments required for students to benefit from statewide academic content and achievement standards. 717. The United States’ educational expert found these deficiencies, and, at the same time, the Arkansas Department of Education (“ADE”) found IDEA non-compliance at CHDC. As the State’s own investigators found violations in line with the United States’ special education expert’s findings, there is an independent basis for a finding of IDEA violations. 20 U.S.C. § 1401(9)(B).
A. Expert Susan Thibadeau Provided Credible Expert Testimony That CHDC’s Education Program Violates Numerous IDEA Requirements.
718. Dr. Susan Thibadeau, the United States’ special education expert, found numerous procedural and substantive IDEA violations, many of which ADE subsequently confirmed in its January 2010 on-site evaluation. Even the Defendants’ special education consultants, Derek Nye and Dr. Bruce Gale, found deficiencies in some of the same areas where Dr. Thibadeau and ADE found IDEA violations. Gale Tr. 5748:19-5749:1, 5755:20-5756:10; Nye Tr. 5137:17-5138:20. 719. Dr. Susan Thibadeau is qualified as an expert witness in special education and psychological/behavioral services. She has a Ph.D. in developmental and child psychology and a master’s degree in special education. She is a licensed psychologist in the State of Maine and Commonwealth of Massachusetts. She is a certified special education teacher in the
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Commonwealth of Massachusetts and a board certified doctoral level behavior analyst.2 Thibadeau Tr. 2171:1-19. 720. Dr. Thibadeau also has extensive experience educating children with developmental disabilities, including working as a psychologist, educator, and director of research and training at a state institution in Massachusetts for adults and children with disabilities; teaching children with significant disabilities; serving as director of community services and ultimately as program director in a non-profit program; teaching high school students with behavior disorders; providing educational consulting services to public schools; and teaching undergraduate- and graduate-level courses in special education and psychology. Thibadeau Tr. 2171:20-2173:8; US Ex. 1101-1. 721. Dr. Thibadeau has broad experience evaluating educational services, including completing assessments of entire school programs, and providing technical assistance regarding individual students’ functional behavior assessments and behavior support plans. Thibadeau Tr. 2173:9-2174:2. 722. Dr. Thibadeau served as an expert witness for educational services in an institutional conditions case in federal court in Tennessee and currently serves on the monitoring team for a consent decree involving state institutions for individuals with developmental disabilities in Texas. Thibadeau Tr. 2173:24-2174:10. 723. Dr. Thibadeau’s review of educational services at CHDC included on-site inspections in July and September 2009. Thibadeau Tr. 2183:22-2185:10. Dr. Thibadeau participated in a tour of the facility, including resident living units and day activity areas. She also conducted between six and nine classroom observations in each of the five CHDC classrooms, as well as

2

Defendants’ special education consultant, Derek Nye, has no formal training about the

IDEA. Nye Tr. 5171:18-20.

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observations of several habilitation training classes and the sheltered workshop. Thibadeau Tr. 2183:22-2185:24. 724. Dr. Thibadeau reviewed education-related documents for each of the 45 students who were then admitted as residents of CHDC (as opposing to being placed at CHDC on respite status). Among the documents were IEPs,3 individual program plans (“IPPs”), behavior support plans, strategies for improving behavior, and safety plans. Thibadeau Tr. 2185:25-2186:9, 2171:1-11. She also interviewed four of the six CHDC classroom teachers, the special education director, and the two teaching supervisors; participated in interviews of the lead psychological examiner, a second psychological examiner, the psychiatrist, and the director of nursing; and attended the depositions of teachers Susan Milum and Throndia Smith and special education director Tamara Hill. Thibadeau Tr. 2171:1-11, 2184:15-2185:10.

B. Arkansas’s State Educational Agency Issued Numerous Findings of IDEA Non-Compliance at CHDC for This Monitoring Period.
725. Under the IDEA, FAPE is not provided unless students’ special education and related services “meet the standards of the State educational agency.” 20 U.S.C. § 1401(9)(B). Arkansas standards for the provision of special education and related services incorporate federal IDEA implementing regulations, as set forth in 34 C.F.R. § 300 et seq., and any additional requirements imposed by the State Educational Agency (“SEA”) or state law. See generally Ark. Admin. Code § 005.18.2. 726. ADE is the SEA “responsible for ensuring that the requirements of this subchapter are met.” 20 U.S.C. § 1412(a)(11)(A)(i); Ark. Admin. Code § 005.18.2-2.03; Harding Tr. 3000:7-

3

An IEP is the required written statement for each child with a disability that sets

forth the comprehensive educational services that are to be provided to the student annually,

including special education services, related services, and transition services. 20 U.S.C. §

1401(14), 1414(d).

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11; Defs. Reply to Plaintiff’s Proposed Findings of Fact at 1 (declining to contest the United States’ Proposed Finding of Fact ¶ 174). 727. ADE recently cited CHDC for failing to provide students with FAPE in accordance with the IDEA, based on 15 enumerated areas of non-compliance. Thibadeau Tr. 2203:11-2204:21; Harding Tr. 2988:7-2989:5, 3006:23-3007:6, 3008:20-24; US Ex. 1104. ADE’s findings are largely consistent with Dr. Thibadeau’s findings.4 Thibadeau Tr. 2204:7-21. 728. On June 16, 2010, ADE sent CHDC a letter reporting the results of ADE’s January 2010 official site monitoring visit assessing CHDC’s compliance with federal and state special education laws and regulations (“ADE report”). This letter detailed 15 areas where CHDC failed to comply with state and federal law and regulations. Thibadeau Tr. 2203:11-2204:21; Harding Tr. 2988:7-2989:5, 3006:23-3007:6, 3008:20-24; US Ex. 1104. 729. ADE employed a method of review similar to that used by Dr. Thibadeau: review of a sample of student records, interviews with CHDC staff, and classroom observations. Harding Tr. 2989:23-2990:4, 3026:19-3032:12. 730. ADE issued four findings of non-compliance regarding CHDC’s IEPs, including: (1) CHDC fails to consider special factors impeding students’ learning when developing student IEPs; (2) IEP components do not address the unique needs of individual students; (3) CHDC transition plans are not based on age appropriate transition assessments and do not describe appropriate measurable post-secondary goals; and (4) CHDC does not inform parents of student progress toward meeting annual goals and short term objectives on a quarterly basis. Harding Tr. 3000:3-3006:22; US Ex. 1104.

4

ADE’s report addressed substantially the same topics as Dr. Thibadeau’s Rule 26

report in this case. Thibadeau Tr. 2211:7-22.

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731. ADE also found that CHDC meets neither teacher/pupil ratios nor IDEA-required deadlines for completing comprehensive disability evaluations, reevaluations, written reports, and student eligibility conferences. Harding Tr. 2995:4-24, 2998:16-3000:2, 3008:25-3010:20; US Ex. 1104. 732. ADE found that CHDC educational services fail to address all of students’ identified special education and related services needs. Harding Tr. 3000:3-19, 3007:7-3008:19; US Ex. 1104. 733. Participation of outside agencies is essential to facilitate students’ transition to appropriate postsecondary settings. Thibadeau Tr. 2299:20-2300:21. ADE found that CHDC was not inviting outside agencies to participate in CHDC IEP meetings about transition services, in violation of the IDEA. Harding Tr. 2990:22-2991:12; US Exs. 1104 & 1201. Moreover, even when appropriate agencies were identified, they were unable to participate in the IEP meetings because CHDC failed to notify parents and request parental consent for their participation, as required by the IDEA. Thibadeau Tr. 2181:22-2182:13, 2300:22-2301:19; US Exs. 1104 & 1201. 734. ADE cited CHDC for failing to provide clinical justification for the shortened school days provided to all CHDC students. Harding Tr. 3011:23-3013:10; US Ex. 1104. 735. ADE also cited CHDC for inadequate teacher training, including insufficient evidence of the use of promising educational practices in special education instruction. Harding Tr. 3015:173018:25; US Ex. 1104.
C. CHDC IEP Teams Do Not Include All Members Required by the IDEA. 736. The IDEA requires that certain categories of educational staff participate in IEP team meetings. 20 U.S.C. § 1414(d)(1)(B). CHDC fails to include all of the IDEA-required team
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members in its IEP meetings. CHDC routinely fails to ensure that representatives from the local education agency (“LEA”) and regular education teachers from the students’ home schools participate in IEP meetings. Thibadeau Tr. 2213:2-2214:15, 2217:11-16, 2220:16-2221:13; Gale Tr. 5748:19-5749:1; US Ex. 1105; Defs. Response to Plaintiff’s Statement of Undisputed Facts ¶ 69 [Dkt. 104]. 737. IEP teams must determine the least restrictive environment appropriate for students in order to maximize their opportunities to interact with their non-disabled peers. A representative from the LEA needs to attend CHDC IEP team meetings so that the team can adequately discuss possible less restrictive alternatives with representatives of students’ home school districts.5 Thibadeau Tr. 2213:5-2214:9. 738. Where a less restrictive alternative is appropriate and a student could attend classes with his non-disabled peers at his home school, a regular education teacher must also participate in the IEP meeting. 20 U.S.C. § 1414(d)(1)(B); Thibadeau Tr. 2417:14-24; US Ex. 1105. 739. Defendants’ special education consultant Dr. Bruce Gale characterized the lack of LEA participation at CHDC IEP meetings as “an enormous problem.” Gale Tr. 5748:19-5749:1. 740. CHDC education documents provide no indication that parents or guardians have consented to the absence of LEA representatives or regular education teachers, which is required by the IDEA for absent team members, as well as prior written input into the development of the IEP prior to the meeting. 20 U.S.C. § 1414(d)(1)(C); Thibadeau Tr. 2220:6-15.

5

Although CHDC IEPs sometimes list a CHDC staff employee as the LEA

representative, see Thibadeau Tr. 2219:13-2220:5; US Exs. 1107, 1108, 1201, a CHDC

employee cannot fulfill this function, as CHDC is not a school district and, in any event, the staff

person does not fulfill the statutory requirements of an LEA representative. See 20 U.S.C.

§ 1414(d)(1)(B).

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D. CHDC’s Special Education Instructional Time Is Inadequate. 741. CHDC is the most restrictive type of educational environment along the IDEA’s continuum of placements, as it affords CHDC students no regular interaction with their nondisabled peers. Thibadeau Tr. 2176:10-25. 742. CHDC students have significant academic and functional skill needs, including needs for development of communication, socialization, self-care, domestic, and leisure skills. Thibadeau Tr. 2177:16-2178:2. Instructional time must be adequate to meet students’ academic and functional needs. Thibadeau Tr. 2176:10-2178:2. 743. All CHDC students receive a shortened school day and spend an inadequate amount of time in special education classes. Thibadeau Tr. 2176:10-25, 2205:3-2206:9; US Exs. 1201 & 1208. No CHDC student attends school for a full day. More specifically, 65% of the 45 CHDC students reviewed by Dr. Thibadeau have spent only 450 minutes per week, or 1.5 hours per day, in special education classes, even though the school day is supposed to last from 9 am until 3:30 pm, or approximately 6.5 hours, as in a typical school. Thibadeau Tr. 2186:23-2187:21, 2194:62196:10. This is entirely inadequate to satisfy CHDC students’ significant academic and functional skill needs and facilitate their transition to a less restrictive educational placement. Thibadeau Tr. 2176:10-25. 744. The United States’ special education expert’s document review revealed that the maximum amount of special education instruction provided by CHDC for a student is 2.5 hours per day – and only 1 student spent even this length of time in school. Thibadeau Tr. 2188:11-21; US Ex. 1102. 745. ADE’s findings regarding the time CHDC students spend in special education were consistent with Dr. Thibadeau’s findings. Thibadeau Tr. 2210:3-13; US Exs. 1209 & 1210.
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746. Defendants have admitted that CHDC school-aged youth spend no more than half of their school day in a classroom with special education certified teachers. Thibadeau Tr. 2221:14-22; US Ex. 1105 at 4. 747. CHDC’s special education coordinator, who is not certified in special education, separately admitted to Defendants’ special education consultant that she pre-determines that new school-aged admissions to CHDC do not need (and will not receive) a full-time education program. Nye Tr. at 5146:6-5147:9, 5189:16-5193:4; US Ex. DN-1. 748. Even when CHDC attempted in summer 2010 to increase the number of minutes some students spend in special education classes, CHDC did not increase the number or complexity of IEP objectives; accordingly, the special education instruction CHDC provides remains inadequate. Thibadeau Tr. 2194:6-2195:19; US Ex. 2026 at US-CON-E-0031312-414 (IEPs of CW, SW, JB, WR, JM, CT, NS, and BR, as modified in summer 2010). 749. Contrary to the practice at CHDC, children with disabilities generally should attend classes for just as long as their peers without disabilities. Thibadeau Tr. 2195:20-2196:23. Special education teachers commonly use strategies to help students attend to tasks and address behaviors so they can learn in the classroom. Thibadeau Tr. 2196:24-2197:17. Indeed, the IDEA requires that “in the case of a child whose behavior impedes the child’s learning and that of others, [the IEP team] consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i). 750. Shortening students’ school days for supervision, personal care, or behavioral needs is inappropriate because these needs call for a more intensive special education services, not a shorter school day. Thibadeau Tr. 2198:17-2199:1. Shortening class time to address students’
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inappropriate behaviors or problems with focusing on tasks also violates the IDEA. Thibadeau Tr. 2195:20-2197:17, 2200:8-2201:5, 2206:10-24. 751. ADE also found that CHDC students were not attending class for a full day, and CHDC IEPs did not adequately substantiate why students had these shortened school days. Thibadeau Tr. 2205:3-2206:24, 2349:8-2350:6; Harding Tr. 3011:163-3013:10; US Exs. 1104, 1201, 1208 & 1216. 752. ADE also found IDEA violations based on the absence of documentation of periodic evaluations to measure progress and failure to implement behavior support plans to increase students’ time in the educational setting. Thibadeau Tr. 2279:9-19; US Ex. 1214. Further, ADE found that students whose reduced school schedules were reportedly a consequence of their being unable to focus for long periods of time nonetheless had full day schedules of activities, suggesting that the reported reason for shortened school days was not valid. Thibadeau Tr. 2279:20-2280:21. 753. In their prior public school placements, CHDC students attended special education classes for exponentially more time than they attend special education classes at CHDC. Thibadeau Tr. 2210:15-2211:6; US Exs. 1102, 1103-1 through 1103-9 & 1214. 754. ADE also noted that students such as JB had a much more intensive schedule in prior placements. For example, JB went from attending 1800 minutes of instruction in social skills, self-help, language arts, functional reading and math each week at his prior placement to 450 minutes of special education every week at CHDC. Thibadeau Tr. 2346:8-16; US Ex. 1216. 755. CHDC schedules students for an hour and a half of lunch, leisure, and personal grooming, but does not include active programming for the development of communication or leisure skills in students’ schedules. This deficiency is significant because many CHDC students
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have limited communication and social interaction skills, which are not being adequately developed during the limited classroom time or outside the classroom at CHDC. Thibadeau Tr. 2188:21-2191:15. 756. CHDC educators do not adequately generalize skills so students can apply them outside the classroom setting, as demonstrated by the common method of teaching money management through fake coins and not applying money management in real-world situations, such as at the canteen. Thibadeau Tr. 2191:16-2192:24. 757. The amount of time CHDC students spend in transition from special education classes to other activities also reduces CHDC students’ limited time in class, as it results in students arriving late or leaving early. Thibadeau Tr. 2197:19-2198:16, 2413:22-2414:5. ADE also observed discrepancies between the limited time scheduled for special education classes and the even smaller amount of time CHDC students actually spend in class. Thibadeau Tr. 2211:232212:21; US Ex. 1214. 758. CHDC students spend a significant amount of their day in habilitation classes taught by instructors who have no special education certification or any teaching certification. Thibadeau Tr. 2221:23-2222:6; Smith Tr. 2155:3-8; Buck Tr. 6536:17-19; Price 1660:23-1661:4; US Ex. 1105 at 4. These habilitation instructors are not supervised by special education certified teachers, as they should be if they are to be providing special education instruction. Thibadeau Tr. 2192:25-2193:2194:5; Nye Tr. 5177:8-5178:2 (habilitation classes are not part of CHDC’s special education program). 759. CHDC school-aged students may attend habilitation classes during the school day with adults, Smith Tr. 2156:1-3, which is not a normalizing experience for these students.
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Defendants’ special education consultant, Derek Nye, found that a typical ratio of school-aged students to adults in CHDC habilitation classes is 1 student to 5 adults. Nye Tr. 5176:23-5177:7. 760. Relying on non-special education certified individuals to teach habilitation skills deprives CHDC students of the benefits of special education instruction. Teaching students who require special education instruction requires specific skills, such as the ability to break tasks into small steps, shape skills, chain activities together to form a more complex skill, use prompting strategies (and planning for the effective fading of those prompting strategies), and identify and apply reinforcers. Thibadeau Tr. 2192:25-2194:5. 761. The IDEA requires that students with disabilities continue to receive FAPE even when they are suspended or placed in an interim setting, where that removal is for longer than ten days. 20 U.S.C. § 1415(k). CHDC, however, further shortens students’ instructional time by restricting students to their residences as punishment for behavior problems, without input from the education program. Thibadeau Tr. 2199:2-8; Milum Tr. 2122:17-2123:4. 762. CHDC employs a Special Treatment Unit Levels of Reinforcement System, which inappropriately conditions attendance in school on students’ behavior by including “going to class” on the Menu of Reinforcers. This program withholds education from students, including in situations where there is no current concern that a student’s behavior would place himself or others at risk of harm. Thibadeau Tr. 2199:9-2200:7, 2353:6-2354:7 (system continues in 2010 IEPs); US Ex. 2026 at US-CON-E-0031249, US-CON-E-0031265 (examples of ongoing use in students’ IEPs). Even Defendants’ psychology consultant is concerned with this program. Walsh Tr. 6111:6-13. 763. Defendants’ special education consultant, Derek Nye, testified that it will take a long time for CHDC to hire sufficient numbers of certified staff to provide students with an
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appropriate amount of special education instructional time in classes that meet ADE-required teacher to student ratios. Nye Tr. 5167:23-5168:20.

E. CHDC IEP Goals and Objectives Fail To Meet IDEA Requirements. 764. The IDEA prescribes specific requirements for IEP goals and objectives, including the requirement that they address both academic and functional areas impacted by a student’s disability. 20 U.S.C. § 1414(d). Students with significant needs should receive training in academic, communication, social, self-care, leisure, vocational, domestic, and community skills. Thibadeau Tr. 2177:16-2178:2, 2222:12-2223:5, 2415:21-2416:12. 765. CHDC students’ IEP annual goals and short-term objectives do not provide for comprehensive education to meet the full range of student needs; rather, CHDC student IEPs focus solely on academic skills and exclude functional skills such as communication, social, selfcare, leisure, vocational, domestic, and community skills.6 Thibadeau Tr. 2177:16-2178:2; US Exs. 1109 through 1114 (examples of illustrative inadequate IEP goals and objectives for CHDC students SA, TF, BH, JM, TS, CT). 766. ADE also criticized CHDC for limiting its IEP development to academic goals. Harding Tr. 3022:3-22; US Ex. 1186. 767. CHDC IEPs also contain insufficient numbers of goals and objectives. Though each IEP must include goals “designed to (aa) meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and (bb) meet each of the child’s other educational needs that result from the child’s disability,” 20 U.S.C. § 1414(d)(1)(A)(i)(II), some IEPs only include two objectives for an entire year. Other

6

The IDEA requires that each student’s IEP contain “a statement of measurable

annual goals, including academic and functional goals.” 20 U.S.C. § 1414(d)(1)(A)(i)(II)

(emphasis added); see also 34 C.F.R. § 300.320(a)(2).

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IEPs include only four objectives, two of which begin to be taught only after the other two are completed. Thibadeau Tr. 2177:16-2178:2; Smith Tr. 2161:21-2162:2. 768. Where an IEP identifies a skill that a student should master, the IEP’s short term objectives should include: (1) a statement indicating conditions under which the new skill will be performed; (2) a description of the skill in observable and measurable terms that allow teachers to determine whether it has been mastered; and (3) a plan for maintenance and generalization of the skill. 20 U.S.C. § 1414(d); Thibadeau Tr. 2223:6-14. 769. CHDC students’ IEP objectives do not meet these standards because, by failing to indicate the number of trials or sessions during which the student must demonstrate a certain level of performance, the IEPs fail to indicate the mastery criteria for the observable behavior the student is to exhibit. CHDC IEPs also lack evidence of planning for skill maintenance and generalization. Thibadeau Tr. 2178:3-12, 2223:15-2237:21; US Exs. 1109 through 1114 (examples of illustrative inadequate IEP goals and objectives for CHDC students SA, TF, BH, JM, TS, CT). 770. The IDEA requires that IEPs contain observable and measurable goals so, to the extent this information is contained in other documents outside the IEP, such as in an IPP, this would not satisfy the IDEA. Thibadeau Tr. 2238:1-9, 2415:3-9. 771. Consistent with Dr. Thibadeau’s opinion, ADE also found that in many cases, CHDC IEP goals and objectives are poorly written, and the objectives often do not relate to the goals or address the specific needs of the student. Thibadeau Tr. 2239:2-2240:5; US Ex. 1214. For example, ADE found that student BM’s IEP contained the same objectives two years in a row, and those objectives only addressed the use of a wheelchair. Thibadeau Tr. 2344:17-2345:11; US Ex. 1216. ADE also found that student CA’s IEP goals and objectives had little connection
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to each other and to CA’s needs, as the student had a two year-old functional speech level and could only say a few words but was supposed to be “learning the language of algebra.” Thibadeau Tr. 2345:12-2346:3; US Ex. 1216. 772. Defendants’ special education consultant, Derek Nye, concurs with Dr. Thibadeau that at least some CHDC IEP objectives are not clear, particularly with regard to the conditions under which tasks were to be performed. Nye Tr. 5159:5-24. Mr. Nye acknowledges that CHDC education staff would benefit from training regarding the writing of IEP goals and objectives. Nye Tr. 5160:3-14. 773. Defendants’ other special education consultant, Dr. Bruce Gale, testified that goal writing appears to be the biggest problem with CHDC IEPs. Gale Tr. 5748:5-12. 774. Teachers do not consistently use objective measures to assess progress toward even those goals and objectives that are included on the IEPs. Thibadeau Tr. 2287:5-2289:6. 775. Also consistent with Dr. Thibadeau’s observations, ADE found that some teachers and aides did not consistently chart student progress, and it was unclear how progress was measured other than correct versus incorrect answers. Thibadeau Tr. 2289:7-19; US Ex. 1214.
F. CHDC Fails To Administer IDEA-Required Statewide and Districtwide Assessments.
776. The IDEA, in addition to the No Child Left Behind Act, requires that students with disabilities participate in statewide assessments to the same extent as their non-disabled peers – by participating in: (1) general statewide assessments without accommodations; (2) general statewide assessments with accommodations; or (3) alternate assessments. See 20 U.S.C. § 1412(a)(16) (requiring that “[a]ll children with disabilities are included in all general state and districtwide assessment programs, including assessments described under section 6311 of this
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title, with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs.”). 777. IDEA-required statewide and districtwide assessments ensure that students with disabilities have access to the State’s challenging academic content standards and that the State measures the achievement of children with disabilities against those standards. Id.; Thibadeau Tr. 2248:23-2250:10. CHDC IEPs do not indicate a grade level and students do not receive grades as they do in the public schools, see, e.g., US Ex. 2026 (updated CHDC IEPs), so statewide and districtwide assessments are especially important for measuring student progress. 778. CHDC is not exempt from any IDEA or ADE requirements. Harding Tr. 2990:5-7. ADE has only advised CHDC that it is exempt from statewide and districtwide assessments under the No Child Left Behind Act; ADE has not provided CHDC with any opinion regarding whether the IDEA also requires statewide and districtwide assessments. Harding Tr. 3057:5-14. 779. Defendants’ special education consultant agrees that both the IDEA and the No Child Left Behind Act require statewide and districtwide assessments, so, even if CHDC were exempt under the No Child Left Behind Act, the IDEA would nevertheless require such assessments. Nye Tr. 5195:4-8. 780. CHDC students do not participate in: (1) general statewide or districtwide assessments without accommodations; (2) general statewide or districtwide assessments with accommodations; or (3) alternative assessments, i.e., the Arkansas Alternative Assessment Program. Thibadeau Tr. 2248:23-2249:24, 2250:11-22, 2251:6-25; Milum Tr. 2141:7-12; Smith Tr. 2164:4-9; Defs. Response to Plaintiff’s Statement of Undisputed Facts ¶ 73 [Dkt. 104]; US Ex. 1214.
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G. CHDC Fails To Consider IDEA-Required Factors in Developing Students’ IEPs.
781. The IDEA prescribes certain required factors that IEP teams must consider in developing students’ IEPs, including students’ academic, developmental, functional, and communication needs. 34 C.F.R. § 300.324(a). 782. CHDC assessment tools do not address all necessary areas of development to enable accurate assessment of present levels of performance and appropriate development of goals and objectives. Thibadeau Tr. 2177:1-15. 783. CHDC relies heavily on Brigance assessments, which do not assess functional skill development in areas such as communication, self-help, domestic, leisure, and vocational skills; skill development in these areas is particularly important for older students. CHDC also relies heavily on the Brigance Diagnostic Inventory for Early Development, an assessment tool intended for use with children from birth to age seven, which does not result in age-appropriate goals and objectives for many CHDC students and fails to address important life skills, goals, and objectives. Thibadeau Tr. 2177:1-15, 2241:4-2243:16; Smith Tr. 2164:1-3 (CHDC tries to use Brigance assessment to measure functional skills). 784. CHDC does not conduct comprehensive teacher-made assessments to address the areas of need omitted by the formal educational assessment inappropriately relied upon by CHDC, the Brigance. Thibadeau Tr. 2243:25-2245:10. 785. ADE also criticized CHDC for relying heavily on the Brigance Inventory for Early Development and for not using educational assessments that measure functional outcomes. Harding Tr. 3022:3-22; US Ex. 1186. Accordingly, ADE recommended in 2005 that CHDC replace the Brigance with an updated formative evaluation tool to better assess student strengths and needs. US Ex. 1186 at 4.
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786. CHDC does not train its teachers on administering the formal assessments they give to CHDC students, including the Brigance and reading-free vocational assessment. Milum Tr. 2135:4-8. 787. The IDEA also requires that assessments be administered in a manner that meets the communication style of the individual who is being assessed. 34 C.F.R. § 300.324(a)(2). CHDC has not met this obligation because it has not offered these assessment accommodations to all students with disabilities. For example, a student with a visual impairment did not receive an assessment because it was typically offered in pictoral form, and a student with a hearing impairment did not receive a different assessment because a sign language interpreter was not available. Thibadeau Tr. 2246:14-2248:20; US Exs. 1193 & 1229.
H. CHDC Fails To Provide Related Services to All Students Who Require Them To Benefit from Special Education Services.
788. FAPE under the IDEA requires provision of all related services required by students’ needs. 20 U.S.C. §§ 1412, 1401(a)(18). “Related services” includes “transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services . . . counseling services, including rehabilitation counseling, orientation and mobility services, and medical services . . .) as may be required to assist a child with a disability to benefit from special education.” 20 U.S.C. § 1401(a)(26). Related services are essential to ensuring that students are able to access and benefit from education. Id.; 34 C.F.R. § 300.34; Thibadeau Tr. 2252:1-13.
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789. CHDC fails to provide related services, including speech services, communication device implementation, psychological/behavioral services, and sign language interpretative services, to all students who require them. Thibadeau Tr.2252:1-2253:6. 790. ADE also found that CHDC does not provide all of the services needed to meet students’ identified special education and related services needs. Harding Tr. 3000:3-19; US Ex. 1104. 791. Consistent with Dr. Thibadeau’s observations, ADE found numerous examples of CHDC students whose education files indicated they were not receiving all required related services, such as communication and behavioral/mental health services, including students BR, BB, KF, CW, and MB. Thibadeau Tr. 2340:24-2344:16, 2346:4-7, 2347:5-2348:24; US Ex. 1216. 792. The IDEA requires that, if a student’s behavior or other special factor impacts his or her learning, the student’s IEP address that need. Harding Tr. 3001:4-3002:10. Among the steps that the IEP team must take where a child’s behavioral needs are affecting his or her learning are the consideration of positive behavioral supports and interventions. 20 U.S.C. § 1414(d)(3)(B)(i). 793. On their face, CHDC IEPs indicate that students should be receiving related services, such as behavioral services and communication services, yet the IEPs do not list any such services being provided. Buck Tr. 6543:21-6544:13, 6545:5-6546:5; US Ex. 2026 at US-CONE-0031229, US-CON-E-0031263, US-CON-E-0031313 (updated IEPs showing that Defendants continue to fail to remedy related services deficiencies). 794. Though a significant percentage of youth at CHDC were admitted in part because of behavioral problems, CHDC does not offer any counseling or psychotherapy services. Nye Tr. 5222:2-5; see also A. Green Tr. 846:9-17 (majority of CHDC children are admitted because they have significant behavioral health needs).
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795. CHDC fails to integrate related services with other CHDC services, resulting in additional gaps in services for students and insufficient information sharing among educational staff regarding the efficacy of the services in place. Thibadeau Tr. 2179:3-14, 2253:7-2255:6, 2276:13-17. 796. IDEA requires that the IEP team meet and revise an IEP to respond to, among other things, “any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate.” 20 U.S.C. § 1414(d)(4)(A)(ii)(I). However, the team process envisioned by the IDEA is not occurring at CHDC, as CHDC fails to ensure regular interaction between education and communications, physical therapy, and occupational therapy staff. Milum Tr. 2120:7-16; Smith Tr. 2166:20-2167:24. Education staff also do not interact regularly with psychology staff; rather, they interact only at annual meetings, upon a new student’s arrival, and upon request. Milum Tr. 2119:18-2120:6. Psychology staff do not routinely come into CHDC classrooms without a teacher’s request. Milum Tr. 2148:12-14. 797. ADE also found that CHDC psychology staff lack knowledge regarding the requirements of the IDEA and its implications in the education program. Harding Tr. 2996:24-2998:15; US Ex. 1199. 798. Consistent with Dr. Thibadeau’s observations, ADE found little to no communication between education staff, related services staff, and residence staff, which is not surprising given that CHDC education staff schedules do not include time to communicate regarding students’ needs. Thibadeau Tr. 2275:17-2276:12, 2278:8-18; US Ex. 1214. Generally, information is shared among disciplines only once a year at the IPP and IEP meeting. Milum Tr. 2119:9-20. This lack of communication precludes implementation of comprehensive service plans and undermines the integrity of plan implementation. Thibadeau Tr. 2278:19-2279:8.
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799. Even Defendants’ special education consultant, Derek Nye, testified that one of the teachers he interviewed felt that CHDC psychology staff are too busy, are located too far away, and are not meeting students’ needs. Nye Tr. 5127:1-5128:1. 800. Defendants’ other special education consultant, Dr. Bruce Gale, commented that the level of collaboration between psychological and speech staff could be better than it is. Gale Tr. 5742:12-5744:2. 801. CHDC related services staff also lack training in special education, and education staff lack training in related services. Thibadeau Tr. 2276:18-2277:6; US Ex. 1214. When ADE provided training to CHDC psychology staff regarding their IDEA obligations in July 2010, staff indicated a lack of understanding regarding their responsibilities and appeared to be under the mistaken impression that they were only charged with meeting ICF/MR CMS funding standards. Thibadeau Tr. 2281:16-2282:17; US Ex. 1199. As a result, CHDC students do not receive comprehensive related services. Thibadeau Tr. 2277:7-13.
1. CHDC Does Not Provide Adequate Communication/Audiology Services to Students.
802. All students who require communication skills development are entitled to and should be receiving such related services; otherwise, these students are not receiving FAPE. 20 U.S.C. §§ 1412, 1401(a)(18); Thibadeau Tr. 2259:23-2260:3. Both Dr. Thibadeau and ADE found a number of CHDC students who should be receiving communication services but are not. Thibadeau Tr. 2178:13-2179:2, 2255:7-23; US Ex. 1216 at US-CON-E-0049596 through 597. 803. CHDC utilizes a direct therapy method of speech language therapy, which results in students learning communication skills in only one environment, without learning to apply
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communication skills outside the therapy room.7 Thibadeau Tr. 2259:3-22. Defendants’ consultant who commented on related services, Dr. Bruce Gale, suggested that CHDC consider using an integrated or consultative model instead of a direct therapy model of communication services. Gale Tr. 5738:2-10. 804. CHDC only offers its direct therapy model speech services to about half of the CHDC students who need them. Thibadeau Tr. 2178:13-2179:2, 2255:7-23. 805. CHDC inappropriately selects students for speech and language services according to the student’s potential for progress and the student’s interest in developing his/her skills. Thibadeau Tr. 2257:17-2258:5, 2259:23-2260:10. 806. Development of communication skills is especially important for children who engage in problem behavior, as it enables them to communicate in a manner other than through the problem behavior. Given that many children have been placed at CHDC for behavioral reasons, communication skill development should be paramount. Thibadeau Tr. 2256:5-2257:16. 807. Only 7 of the 21 non-verbal school-aged children at CHDC have augmentative communication devices. Johnson Tr. 5389:7-11. For this small number of CHDC students provided assistive technology, CHDC staff does not encourage the use of these devices and, consequently, students do not consistently use them. Thibadeau Tr. 2258:6-2259:2. 808. ADE also found instances of CHDC students not having access in the classroom to their alternative or augmentative communication devices, such as communication books or other communication devices. Thibadeau Tr. 2260:11-24, 2261:13-2262:23, 2350:25-2351:8; US Exs. 1201 & 1206.

7

Speech/language therapists do not routinely go into classrooms to observe and

assist with students’ communication skills, further exacerbating the problem with transferring

communication skills outside the therapy room using a direct therapy model. Thibadeau Tr.

2259:3-22.

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809. The IDEA requires that hearing aids worn in school by students with hearing impairments are functioning properly. 34 C.F.R. § 300.113(a). ADE found that CHDC had not been regularly monitoring students’ hearing aids in the classroom to ensure they were functioning properly. Thibadeau Tr. 2260:11-2261:12; US Ex. 1201. As a result, CHDC students, such as students LW, JB, and BB, have not had their required hearing devices available and functioning in the classroom, in violation of the IDEA. Thibadeau Tr. 2263:3-23, 2264:112265:14; US Exs. 1214, 1224 & 1225. 810. ADE also found no evidence of follow-up regarding poor vision and hearing and no evidence of formal augmentative alternative communication assessments in CHDC education files. Thibadeau Tr. 226324-2264:10; US Ex. 1211.
2. CHDC Does Not Provide Adequate Psychology/Behavioral Services to Students.
811. The IDEA requires that “in the case of a child whose behavior impedes the child’s learning and that of others, [the IEP team] consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i). In practical terms, this means that a functional behavior assessment and behavior support plan must be completed for students whose behavior results in their being placed outside of their regular education classrooms. Thibadeau Tr. 2271:23-2272:12. 812. According to CHDC IEPs, many CHDC students were placed at CHDC because of their behaviors. Thibadeau Tr. 2272:13-21; A. Green Tr. 846:9-17. Yet CHDC does not use functional behavior assessments with all CHDC students and, to the extent CHDC attempts to use functional behavioral assessments, they are not comprehensive in scope because, for example, they do not involve individuals like teachers who interact on a daily basis with the students. Thibadeau Tr. 2269:25-2270:12, 2271:9-22.
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813. Consistent with Dr. Thibadeau’s observations, ADE also noted that in most cases, students’ education files do not include behavior plans or goals and objectives to address behavior in the education setting. Thibadeau Tr. 2277:23-2278:7; US Ex. 1214. ADE also found that CHDC did not necessarily address problem behaviors in the classroom for students who were on shortened school days reportedly for behavior issues. Thibadeau Tr. 2279:9-19; Harding Tr. 3011:23-3013:10; US Ex. 1214. 814. ADE found in its review of a sample of 15 students that at least 7 students who should have had behavior plans or strategies in their education files did not. Thibadeau Tr. 2273:9-24; US Ex. 1211. Accordingly, education staff cannot follow students’ behavior plans, and those plans cannot be consistently implemented across students’ environments. Thibadeau Tr. 2273:25-2274:8. 815. CHDC also fails to adequately train staff in plans for behavior interventions, as psychological examiners infrequently interact with teachers. Thibadeau Tr. 2266:24-2267:12, 2270:13-23, 2272:22-2273:8. ADE also found that some teachers knew little about behavior strategies for specific students, again affecting the consistency of implementation of behavior plans and strategies. Thibadeau 2277:14-22; US Ex. 1214. 816. Generally accepted professional standards require collecting and graphing daily measures of student performance, i.e., an accurate measure of treatment integrity. CHDC’s behavior reports are inaccurate measures of behavior because they do not define the target behaviors and offer ranges of behavior occurrences to assess, and, in any event, are inconsistently completed by CHDC staff. Thibadeau Tr. 2270:24-2271:8, 2286:6-2287:4, 2289:20-2291:14. 817. For example, Dr. Thibadeau witnessed two CHDC students engaged in self-harm that, per CHDC policy, should have triggered staff completion of behavior reports. Yet, upon Dr.
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Thibadeau’s request to see the behavior reports, the facility responded that for at least one of the incidents, no behavior report existed. Thibadeau Tr. 2179:3-2180:1. 818. Similarly, Defendants’ special education consultant, Derek Nye, could not locate a behavior report for an incident he observed in which a student exhibited behaviors, was escorted out of class, and did not return. Nye Tr. 5224:17-5225:2. 819. ADE also criticized CHDC for its inadequate method of tracking behaviors by relying on teachers to count and record the numbers of observed behaviors. Harding Tr. 3025:2-10; US Ex. 1186 at 7. 820. Accurate behavior data is important because potential changes to behavior plans and medication tapers are based on such data. Thibadeau Tr. 2179:15-2180:13, 2291:15-2292:5. 821. The effects of inadequate behavior management tools also may be seen in CHDC’s use of antiquated and inappropriate mechanical restraints on children. Numerous states, including Massachusetts and Maine, have outlawed mechanical restraints for children, yet CHDC continues to use a highly restrictive papoose board on children. Thibadeau Tr. 2284:25-2286:5. 822. Use of papoose boards in classrooms is doubly problematic because CHDC education staff admit that the restraints distract the class. Milum Tr. 2141:13-2142:10, 2147:11-21.
I. CHDC’s Transition Planning and Transition Services Do Not Satisfy IDEA Requirements.
823. The IDEA requires that, once a student with disabilities turns 16 years old, schools provide a coordinated set of services to support the student as he or she moves from secondary education to post-secondary life, including vocational training, independent living skills, and supported employment. 34 C.F.R. § 300.320(b); Thibadeau Tr. 2292:6-18. Transition services for CHDC students do not address the needs of students who are 16 years or older; as a result,
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students are not adequately prepared for vocational or post-secondary activities. Thibadeau Tr. 2292:6-2293:8. 824. IEPs must contain appropriate, measurable transition goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills and the transition services needed to reach these goals. 34 C.F.R. § 300.320(b). CHDC students’ IEPs do not contain appropriate, measurable goals for transition services because CHDC students’ transition plans do not clearly specify what skills the student is learning or how student performance will be measured. Thibadeau Tr. 2181:22-2182:7; Buck Tr. 6542:3-25; US Exs. 1115 through 1118. 825. Even Defendants’ special education consultant, Derek Nye, found that CHDC transition plans lack clarity and fail to contain measurable goals, as required by the IDEA. Nye Tr. 5137:17-5138:20. 826. Several illustrative examples demonstrate how CHDC IEP transition goals are neither measurable nor appropriate. Thibadeau Tr. 2294:1-2298:10. For example, student JB’s transition plan does not contain appropriate individualized, measurable goals but rather states that JB will identify community signs and write his first and last name - skills that may be supplemental to vocational skills but will not enable such skills. Thibadeau Tr. 2294:1-24; US Ex. 1115. Regarding independent living skills, student JB’s IEP indicates only that he will identify health care items, which will not provide adequate training for independent living. Thibadeau Tr. 2294:25-2295:12; US Ex. 1115. 827. Similarly, CHDC student TH’s transition plan indicates only “communication/language” in the employment section and, in the independent living section, only “food items, self-help skills, recreation/leisure, daily living, and money” are listed. None of these is an appropriate,
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measurable transition objective. Thibadeau Tr. 2295:13-2296:8; US Ex. 1116. TH’s plan repeats these vague goals from the prior year. Thibadeau Tr. 2296:9-15; US Ex. 1116. 828. CHDC student BM’s transition plan contains vague references to “recreation/leisure and adult enrichment,” repeated from the prior year, without specifying appropriate measurable goals. Thibadeau Tr. 2296:16-2297:13; US Ex. 1117. 829. Finally, CHDC student DN’s IEP transition plan similarly lists only “hand/face washing, pour liquids, matching textures, and money management,” none of which satisfy the IDEA’s requirement for appropriate, measurable transition goals. These goals also had been continued from multiple prior years. Thibadeau Tr. 2297:14-2298:5; US Ex. 1118. 830. As demonstrated by these inadequate transition goals, CHDC does not administer effective transition plan assessments to develop such goals. CHDC should be engaging the student in discussions and/or assessments to identify his or her interests and strengths, using that as a platform to discuss potential vocational opportunities with the student and his or her family. Instead, CHDC utilizes the reading-free vocational assessment, which involves students pointing to pictures depicting occupations. This assessment is not likely to result in an accurate measurement of students’ vocational interests. Thibadeau Tr. 2242:18-2243:16. Even CHDC education staff acknowledge that this assessment is not accurate for all students. Milum Tr. 2135:9-2136:2. 831. When CHDC does solicit input from students regarding their career interests, documented instances show that this input is sometimes ignored. Thibadeau Tr. 2243:17-24, 2354:8-2355:9; US Ex. 2026 at US-CON-E-0031258 and US-CON-E-0031275 (updated IEP transition plans of students TT and CW not reflecting students’ stated interests).
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832. Further, CHDC makes little attempt to engage outside agencies in planning for students’ transition to adult life. Representatives of outside agencies needed for transition do not generally participate in transition planning for CHDC students. Thibadeau Tr. 2181:22-2182:13, 2299:1024. 833. Without outside agency contact, parents, guardians, and students are not aware of the range of services available in their communities, and service providers do not know about the needs of CHDC students who may need services upon their transition. Thibadeau Tr. 2299:1019. Lack of outside agency involvement in transition services risks students’ ability to access and benefit from services to transition them from secondary education to adult life. This is particularly important for students with needs for comprehensive supports and services. Yet CHDC does not educate parents about the function of outside agencies and the importance of granting permission for outside agency attendance at IEP meetings. Thibadeau Tr. 2299:202300:21. 834. ADE also found that CHDC IEP notices to parents do not consistently identify other agency representatives to be invited to participate in IEP meeting transition services discussions. Thibadeau Tr. 2301:10-19. Unless CHDC identifies agency representatives in parental notices, outside agency representatives cannot participate in IEP meetings because the IDEA requires parental consent for their participation. 34 C.F.R. § 300.321(b)(3); Thibadeau Tr. 2300:13-21, 2302:1-2303:1; US Exs. 1104 & 1207. 835. As of ADE’s site inspection in January 2010, 28 of 50 students needed appropriate transition services because they were 16 years old or older. Thibadeau Tr. 2293:21; US Ex. 1208.
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836. Consistent with Dr. Thibadeau, ADE also found that CHDC students’ IEP transition plans did not include appropriate, measurable post-secondary goals based on an age-appropriate transition assessment related to training, education, employment, and, where appropriate, independent living skills, as required by the IDEA. Thibadeau Tr. 2298:19-2299:9, 2302:12303:1; Harding Tr. 3002:13-3003:24; US Exs. 1104, 1201 & 1207.
J. CHDC Fails To Educate Students in the Least Restrictive Environment, as Required by the IDEA.
837. Students with disabilities are entitled to be educated in an environment where they have the maximum possible interaction with their non-disabled peers, both in educational and extracurricular activities. Districts are not authorized to choose a more restrictive placement than that which is appropriate, as the IDEA explicitly requires that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §§ 300.114, 300.117. 838. Contrary to IDEA requirements, CHDC students are not educated in the least restrictive environment, as CHDC is one of the most restrictive environments and no student attends any class or extracurricular activity with his or her non-disabled peers. Thibadeau Tr. 2303:22305:10; Milum Tr. 2116:15-2117:3; Smith Tr. 2153:15-17. 839. ADE also found insufficient evidence that CHDC provides students with an equal opportunity for participation in nonacademic and extracurricular activities, including participation with non-disabled students to the maximum extent possible. Thibadeau Tr. 2314:25-2315:11; US Ex. 1201.
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840. Defendants’ special education consultant, Dr. Bruce Gale, acknowledged that the concept of least restrictive environment has not been fully implemented as to CHDC students. Gale Tr. 5755:20-5756:10. Dr. Gale also admitted that CHDC staff fail to meet their obligation to raise potential alternative placements for students absent a parental request to do so. Gale Tr. 5760:20-5764:3. 841. CHDC students who attended public schools prior to their admission to CHDC used to be able to attend classes and extracurricular activities with their non-disabled peers while in public school. Milum Tr. 2116:4-7; Nye Tr. 5235:23-5240:15; US Exs. 1103-1 through 1103-9. 842. Over the last several years, CHDC has provided less, not more, opportunities for students to participate in mainstreamed activities. CHDC previously provided a few students the opportunity to attend the public schools in Conway under a now-expired agreement with the local school district. Thibadeau Tr. 2314:16-24; Smith Tr. 2153:18-20; Harding Tr. 3026:4-11. 843. Even when CHDC provided more options to satisfy its LRE obligations by allowing 3 of the then-36 students at CHDC attended public school activities, ADE nonetheless recommended in 2005 that CHDC provide additional options by actually enrolling students in the local public schools. Harding Tr. 3025:11-3026:3; US Ex. 1186. 844. Instead, CHDC now tries not to admit students who have received educational services with their non-disabled peers because, contrary to IDEA requirements for a full continuum of placement options, public school placement is not made available to CHDC students. See 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.115. 845. Though CHDC education staff believe the Conway public school system has the responsibility to accept students from CHDC, Milum Tr. 2133:6-9, no CHDC students are allowed to attend any classes with their non-disabled peers. Nye Tr. at 5146:6-5147:9.
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846. Some students at CHDC have needs similar to students who attend classes with nondisabled peers in the Conway public school system. Milum Tr. 2115:25-2116:3. Yet these students no longer attend public school, primarily because of reported behavior concerns. Milum Tr. 2116:8-14. Pursuant to their IDEA obligations, special education teachers in public schools commonly address behaviors so students can learn in the classroom. Thibadeau Tr. 2196:112197:17, 2200:8-2201:5, 2206:10-24; see 20 U.S.C. § 1414(d)(3)(B)(i). 847. Even Defendants’ education consultant agrees that once a student’s behavioral concerns are addressed, CHDC should be looking for a less restrictive placement for that student. Nye Tr. 5241:14-21. 848. CHDC education staff and individualized education plan teams have expressed concern that CHDC students are not being educated in the least restrictive environment. Thibadeau Tr. 2305:23-2307:14; Milum Tr. 2125:4-9; US Exs. 1191, 1193 & 1196. 849. For example, in at least two special education annual reviews for student LW, CHDC education staff documented their belief that CHDC is not the least restrictive environment for LW. Thibadeau Tr. 2306:4-2307:4; Milum Tr. 2126:3-2128:18; US Exs. 1193 & 1196. LW has not had access to sign language interpretive services at the CHDC school, as CHDC has no sign language interpreters and CHDC education staff are not fluent in sign language. Thibadeau Tr. 2307:15-2308:6; Milum Tr. 2125:10-24; Smith Tr. 2165:9-2166:16; US Ex. 1215. LW would be better served in an educational environment in which he could communicate with his educators and peers. Thibadeau Tr. 2313:19-2314:7. Yet CHDC placed the burden of pursuing a more appropriate placement on LW’s parents. Milum Tr. 2148:15-2149:3. Meanwhile, CHDC documented LW’s frustration in not being able to communicate via sign language with CHDC staff. Buck Tr. 6528:12-6529:17; Defs. Ex. 483. These problems are not limited to LW. Other
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CHDC students have hearing impairments and are therefore similarly deprived of the opportunity to communicate using sign language and to develop sign language skills while at the CHDC school. Milum Tr. 2125:25-2126:2; Smith Tr. 2152:12-14; Buck 6516:9-11. 850. CHDC education staff also documented their belief that the CHDC school is not the least restrictive environment for ZS, as he would likely benefit in a learning environment with students more comparable to his intellectual ability. Thibadeau Tr. 2307:5-14; Milum Tr. 2129:1-3; US Ex. 1191. According to his teacher, ZS is a very attentive student who has mild disabilities, significant academic skills, and enjoys learning, but has not received sufficient special education instructional time for years at CHDC. Milum Tr. 2121:2-2122:3, 2128:212131:14; US Exs. 1190 through 1192; see also FOF # 27 (ZS’s admission to CHDC was supposed to be temporary until waiver services in the community were established for him). 851. Dr. Thibadeau concurs with CHDC education staff’s recommendation for a less restrictive educational environment for ZS, as CHDC documentation indicated that ZS’s behavior in the classroom had markedly improved and his reading comprehension was only a few years below average. Thibadeau Tr. 2311:15-2312:8; US Exs. 1169, 1190 & 1191. 852. CHDC student records and classroom performance observations indicate that CHDC is not the least restrictive educational environment for additional students. Thibadeau Tr. 2181:1421, 2305:11-22. For example, Dr. Thibadeau observed CHDC student CA throughout her two weeks on-site, and he interacted well with other individuals and appeared to be capable of following the school routine. With appropriate supports and services, CHDC student CA could be served in a less restrictive environment. Thibadeau Tr. 2309:18-2310:12; US Ex. 1123. 853. CHDC student CL also could be served in a less restrictive environment. CHDC documentation indicates he can read at or above grade level, tell time, complete some addition
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problems, and write in print. He is diagnosed with a moderate intellectual disability and autism. Dr. Thibadeau observed CL to be receptive to instruction as well. Thibadeau Tr. 2310:132311:2; US Ex. 1147. 854. Similarly, Dr. Thibadeau observed CHDC student JR to be cooperative with instruction, and independently mobile. He is also a good candidate for education in a less restrictive environment. Thibadeau Tr. 2311:3-14; US Ex. 1163. 855. CHDC student TS has intellectual and social functioning levels in the mild to borderline range and had only one behavior report in the month he had been at CHDC. Dr. Thibadeau also observed him interacting appropriately with others, including assisting with lunchtime clean-up. He also could be served in a less restrictive environment. Thibadeau Tr. 2312:9-25; US Ex. 1176. 856. CHDC student SW also has a low frequency of behaviors resulting in behavior reports at CHDC. SW functions intellectually and socially at the moderate level. Dr. Thibadeau observed SW to be capable of appropriately communicating his needs and wants. In sum, SW appeared to be able to benefit from a less restrictive environment. Thibadeau Tr. 2313:1-18; US Ex. 1182. 857. CHDC’s efforts to provide community experiences for CHDC students fall far short of the types of regular interactions with non-disabled peers contemplated by the IDEA’s least restrictive environment requirement. For example, CHDC responded to ADE’s inquiry regarding interactions with non-disabled peers that CHDC students “shop in the community, attend the fair, attend parades, go out to eat, and go to movies.” Thibadeau Tr. 2308:7-2309:1; US Ex. 1215. CHDC also attempts to construct community interaction with students by having school bands and choirs perform at CHDC and by having student volunteers occasionally volunteer at CHDC outside of school hours. Thibadeau Tr. 2315:12-2317:21; US Exs. 1226 &
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1227. Such sporadic group community outings and occasional on-campus interactions do not enable CHDC students to form social relationships with their non-disabled peers, as would regular attendance in classes and extra-curricular activities – opportunities no CHDC student has. Thibadeau Tr. 2308:7-2309:1, 2317:5-21. 858. Schools are obligated under the IDEA to conduct an independent analysis of whether each student is being educated in the least restrictive environment appropriate to the student’s needs. The fact that a parent has not made a request for a more integrated setting does not relieve a school of this obligation. Thibadeau Tr. 2304:4-15. 859. If CHDC were to comply with the IDEA’s requirement for local education agency representatives to participate in IEP meetings, CHDC would be better informed about community education options that could enable CHDC students to be served in a less restrictive environment. Thibadeau Tr. 2317:22-2318:12. CHDC’s lack of communication and cessation of its relationship with the local school district contribute to the ongoing isolation of students at CHDC in an environment that is highly restrictive. Thibadeau Tr. 2318:13-2319:4. 860. CHDC is a highly restrictive environment in which students’ functional skills are not developed, which perpetuates the students’ placements in the most restrictive environment on the continuum of special education services. Schools are required to teach students the skills to better prepare them to transition to a less restrictive environment, yet CHDC does not. Thibadeau Tr. 2319:6-25. For example, CHDC students’ toileting skills are not developed in CHDC’s educational program, Milum Tr. 2142:25-2143:7, and students continue to use Pull-ups or Attends. Thibadeau Tr. 2320:1-13. Similarly, residential staff fail to adequately attend to students’ eating plans, providing students with the wrong diets and making no attempts to improve students’ eating skills. Thibadeau Tr. 2180:14-2181:1, 2320:14-2321:19.
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861. Not only does CHDC’s education program fail to address such skills development through students’ IEPs, but CHDC’s IPPs also fail to encompass all appropriate skill development. For example, CHDC IPPs inappropriately require that students acquire certain skills before learning other unrelated skills, such as teeth brushing before toileting. Thibadeau Tr. 2321:20-2322:17. As another example, CHDC students’ schedules include inordinate amounts of time for basic skills development that could be incorporated into daily activity, such as 45 minutes 3 times a week dedicated to hand washing. Thibadeau Tr. 2322:16-2323:3.
K. CHDC Does Not Provide Adequate Teacher Training and Supervision. 862. Education staff must be appropriately and adequately prepared and trained, and those personnel must have the content knowledge and skills to serve children with disabilities. 34 C.F.R. § 300.156(a). To that end, CHDC must take measurable steps to recruit, hire, train, and retain highly qualified personnel to provide special education and related services to children with disabilities. 34 C.F.R. § 300.156(d). 863. CHDC teachers lack adequate training and supervision to appropriately implement students’ IEPs. On-site observations revealed that teachers were not able to engage students in learning because they were not familiar with student preferences and interests. Thibadeau. Tr. 2182:14-2183:21. 864. Teachers should be trained to conduct preference assessments and in task analysis, discrete trial instruction, prompting strategies, and planning for maintenance and generalization of skills, yet CHDC teachers do not have this training. Thibadeau Tr. 2193:17-24, 2324:192326:12. CHDC teacher Throndia Smith confirms that CHDC does not train its teachers on conducting preference assessments. Smith Tr. 2160:24-2161:5. Rather, as observed by Dr. Thibadeau, CHDC teachers engage in repeated unsuccessful attempts to provide instruction,
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without adapting their methods, illustrating how the teachers’ lack of training in these areas results in inadequate instruction. Thibadeau Tr. 2325:14-2326:12. 865. CHDC fails to require teachers to receive training in areas relevant to the needs of the students they teach. Smith Tr. 2160:5-7. 866. Defendants’ special education consultant, Dr. Gale, agrees that CHDC would benefit from more in-service training in understanding the requirements of the IDEA. Gale Tr. 5723:85724:12. 867. The standard in the field of special education requires ongoing teacher supervision by an individual with education and experience in the subjects being taught. None of the four teachers interviewed by Dr. Thibadeau identified a consistent schedule of supervision or support for provision of education services, implementation of behavior support plans, nor communication development. Thibadeau Tr. 2328:7-2329:4, 2329:11-22. Dr. Thibadeau also observed instances of ineffective instruction techniques that could have been corrected with adequate teacher supervision. Thibadeau Tr. 2330:19-2335:4. 868. CHDC supervisory education staff fail to provide substantive oversight or feedback regarding IEP goals or objectives or their implementation. Milum Tr. 2138:25-2139:22. 869. CHDC’s special education supervisor is not certified in special education instruction or supervision and therefore has insufficient knowledge of special education requirements. Thibadeau Tr. 2329:5-10. The lead special education teacher called by Defendants to testify has no special education work experience outside of her employment at CHDC. Buck Tr. 6508:8-10. 870. CHDC must adopt effective procedures for acquiring and disseminating to teachers and administrators significant information from educational research, demonstrations, and similar projects, and for adopting, where appropriate, promising educational practices developed through
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such projects. 20 U.S.C. § 1232e. ADE found insufficient evidence that CHDC has adopted required promising educational practices for the provision of special education instruction. Thibadeau Tr. 2335:23-2336:12; US Ex. 1104. 871. ADE found that CHDC has no written plan for ongoing staff training or professional development. Thibadeau Tr. 2336:13-20; US Ex. 1198. Without such a plan, CHDC violates the IDEA and its implementing regulations by failing to train teachers to serve students’ unique needs and teachers are ill-equipped to teach CHDC students, as CHDC teachers acknowledged in interviews with ADE. Thibadeau Tr. 2336:13-2340:23; US Exs. 1198, 1201 & 1214. 872. Defendants’ special education consultant, Derek Nye, testified that it will be timeconsuming for CHDC to develop a more systematized form of staff development. Nye Tr. 5167:6-22. 873. CHDC also fails to maintain an education policy manual, Smith Tr. 2152:17-19, and ADE recently directed CHDC to develop one. Milum Tr. 2136:6-12. Although CHDC drafted policies in summer 2010, it has not yet implemented them. Buck Tr. 6520:6-20. Without special education policies, teachers lack direction and oversight.
XV. CONCLUSIONS OF LAW - SPECIAL EDUCATION A. CHDC’s Procedural IDEA Violations Deprive Students of Educational Opportunities. In Bd. of Educ. v. Rowley, 458 U.S. 176 (1982), the Supreme Court established a two-step
inquiry for evaluating claims that students have not received a free appropriate public education (“FAPE”) under the Education for All Handicapped Children’s Act, the predecessor statute to the IDEA. 458 U.S. at 206-07. Under this two-step analysis, a court first evaluates whether a state has complied with statutory procedural requirements. Id. at 206. Second, the court determines whether the individualized educational program developed through statutory procedures is
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“reasonably calculated to enable the child to receive educational benefits.” Id. at 206-07. Both requirements must be met. See id. As the Rowley Court emphasized, “the importance Congress attached to these procedural requirements cannot be gainsaid.” Id. at 205.
Courts have continued to apply the Rowley two-part analysis to post-IDEA cases, looking first to determine whether there were procedural deficiencies before considering whether there are substantive violations. Lathrop R-II Sch. Dist. v. Gray, 611 F.3d 419, 424 (8th Cir. 2010); Yankton Sch. Dist. v. Scramm, 93 F.3d 1369, 1373 (8th Cir. 1996); Petersen v. Hastings Pub. Sch., 31 F.3d 705, 707 (8th Cir. 1994).
A procedural violation of the IDEA establishes a denial of FAPE if it compromises a student’s right to an appropriate education, seriously hampers the parents’ opportunity to participate in the IEP process, or causes a deprivation of educational benefits. Lathrop R-II Sch. Dist., 611 F.3d at 424; Sch. Bd. of Ind. Sch. Dist. No. 11 v. Renollett, 440 F.3d 1007, 1011 (8th Cir. 2006); Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th Cir. 1996); Kingsmore v. District of Columbia, 466 F.3d 118, 119 (D.C. Cir. 2006) (finding a violation of IDEA’s procedural requirements “is viable only if those procedural violations affected the student’s substantive rights”); Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006) (“relief is appropriate if procedural violations deprive [the student] of an educational opportunity (prejudice) or seriously infringe his parents’ opportunity to participate in the formulation of the individualized education plan.”).
Routinely failing to offer a full continuum of educational placements, failing to convene IEP teams with all of the IDEA-required members (i.e., the LEA representative and a regular education teacher), failing to develop IEPs that contain appropriate and measurable goals and
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objectives, failing to consider IDEA-required factors in developing IEPs, failing to administer statewide and districtwide assessments, and failing to invite a representative from the agency or agencies likely to provide transition services,8 each constitute a denial of FAPE. Each of these procedural deficiencies deprives CHDC students of the educational benefits to which they are entitled under the IDEA, including opportunities to access public school and other agency resources, to develop skills through measurable IEP goals and objectives, and to benefit from statewide achievement standards.

1. CHDC Does Not Offer Students a Full Continuum of Educational Placements, as Required by the IDEA.
The IDEA requires that each public agency provide students with disabilities, such as those at CHDC, with a full continuum of educational placements, including access to instruction in both special education and regular education classes, as well as access to supplementary services such as resource rooms for augmentation of students’ skills in particular subjects.

8

Under the IDEA, the term “transition services” means a coordinated set of

activities for a child with a disability that--

(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based on t he individual child’s needs, taking into account the child’s strengths, preferences, and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

20 U.S.C. § 1401(a)(34).

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20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.115. “Courts have held that the placement decision must be based on the IEP produced by the IEP team and cannot be made before the IEP is produced.” James D. v. Bd. of Educ., 642 F. Supp. 2d 804, 821 (N.D. Ill. 2009) (quoting Bd. of Educ. of Tp. High Sch. Dist. No. 211 v. Michael R., No. 02-6088, 2005 WL 2008919, at *14 (N.D. Ill. Aug. 15, 2005) (citing Spielberg v. Henrico County Pub. Sch., 853 F.2d 256, 258-59 (4th Cir. 1988))). Therefore, a school’s “unilateral decision to change a student’s placement before the IEP meeting with the student’s parents, referred to as ‘predetermination,’ can constitute a violation of the IDEA.” Id. Predetermination of a student’s educational placement prior to the development of an appropriate IEP at an IEP meeting constitutes a procedural violation of the IDEA resulting in denial of FAPE. Deal v. Hamilton County. Bd. of Educ., 392 F.3d 840, 855-57 (6th Cir. 2004); Spielberg v. Henrico County. Pub. Sch., 853 F.2d 256, 259 (4th Cir. 1988).
The uncontroverted evidence in this case reveals that students entering CHDC have a predetermined educational placement in an institutional setting, only interacting regularly with peers who have disabilities. There is no opportunity for CHDC students to attend any classes or extracurricular activities with their non-disabled peers and indeed no plan to facilitate any such activities for any students now that the former agreement between CHDC and the Conway public school district has lapsed. See FOF ## 838, 839 & 842. Indeed, as Defendants’ special education consultant Derek Nye testified, CHDC’s practice is to try not to admit students who have received educational services in a general education curriculum because that educational placement option is not available to CHDC students. See FOF # 747. CHDC’s special education coordinator, who is not certified in special education, decides without an IEP meeting that the
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students to be admitted to CHDC do not need (and will not receive) a full-time education program. See FOF # 747.
This unilateral decision to deny CHDC students access to any classes or extra-curricular activities with their non-disabled peers is an unlawful predetermination of CHDC students’ educational placements that deprives CHDC students of the full continuum required by the IDEA. Circumventing the IEP team decision through a predetermination is a procedural violation that deprives students of the educational benefits of interaction with their non-disabled peers required by the IDEA’s continuum of placements and least restrictive environment provisions. See 20 U.S.C. § 1412(a)(5); 34 C.F.R. §§ 300.107 & 300.115.
2. CHDC Fails To Satisfy the IDEA’s Requirement That an LEA Representative and a Regular Education Teacher Attend IEP Meetings for CHDC Students.
The IDEA prescribes the required members of the team who must meet to evaluate special education needs for students with disabilities (the “IEP team”). Specifically, 20 U.S.C. § 1414(d)(1)(B) provides:
The term “individualized education program team” or “IEP Team” means a group of individuals composed of -(i) the parents of a child with a disability; (ii) not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment);9

9

Regular education teachers play a critical role in developing an IEP:

Very often, regular education teachers play a central role in the education of children with disabilities (H. Rep. No. 105-95, p. 103 (1997); S. Rep. No. 105-17, p. 23 (1997)) and have important expertise regarding the general curriculum and the general education environment. F urther, with the emphasis on involvement and progress in the general curriculum added by the IDEA Amendments of 1997, regular education teachers have an increasingly critical role (together with special

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(iii) not less than one special education teacher, or where appropriate, at least one special education provider of such child; (iv) a representative of the local educational agency who-
(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (II) is knowledgeable about the general curriculum; and (III) is knowledgeable about the availability of resources of the local educational agency; (v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi); (vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and (vii) whenever appropriate, the child with a disability. 20 U.S.C. § 1414(d)(1)(B) (emphasis added);10 see also 34 C.F.R. §§ 300.321(a)(2), 300.324(a)(3), 300.324(b)(3).
The IDEA provides a limited exception under which certain required team members may be exempt from meeting participation – but only if the student’s parents and the local educational agency consent in writing, and the missing team member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting. 20 U.S.C. § 1414(d)(1)(C).
education and related services personnel) in implementing the program of FAPE for most children with disabilities, as described in their IEPs. M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 643 (9th Cir. 2005) (citing 34 C.F.R. § 300, App. A).
10 The IDEA also provides that “[t]he regular education teacher of the child, as a member of the IEP Team, shall, consistent with [§ 1414(d)(1)(C)], participate in the review and revision of the IEP of the child.” 20 U.S.C. § 1414(d)(4)(B).
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The requirement for a regular education teacher to participate in students’ IEP meetings is mandatory if the student is or may be participating in the regular educational environment. See 34 C.F.R. §§ 300.321(a)(2), 300.324(a)(3), 300.324(b)(3); see also M.L., 394 F.3d at 643-44 (noting that the “plain meaning” of this provision of the IDEA “compels the conclusion that the requirement that [at] least one regular education teacher be included on an IEP team, if the student may be participating in a regular classroom, is mandatory – not discretionary”).
Similarly, each IEP team meeting must include a local education agency representative (“LEA representative”) who is “qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the local educational agency.” 20 U.S.C. § 1414(d)(1)(B)(iv). This requirement also is mandatory, not discretionary. See id.
IEP teams for CHDC students routinely do not include an LEA representative. See FOF ## 736-737, 739-740. This deficiency causes harm to CHDC students because there is no IEP team participant that can fulfill the LEA representative’s role of facilitating CHDC student access to the general education curriculum and the resources of the local educational agency. See 20 U.S.C. § 1414(d)(1)(B)(iv). As a result, there is no meaningful discussion of less restrictive alternatives for the student available in the public schools.
Nor do IEP teams for CHDC students routinely include a regular education teacher. See FOF ## 736, 738 & 740. Defendants have contended that regular education teachers are not included because no CHDC student attends class with his or her non-disabled peers and it is therefore not “likely” that the student would attend general education classes. This is contrary to
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the statutory language requiring regular education teacher participation if a student “may be” participating in the regular education environment. See 20 U.S.C. § 1414(d)(1)(B). This is also contrary to documented evidence that CHDC is not the least restrictive environment for all students, and that some should be participating to some extent in the regular education environment. See FOF ## 839-857. The State cannot provide CHDC students with opportunities to attend class or extra-curricular activities with their non-disabled peers, see 34 C.F.R. §§ 300.107, 300.115, if regular education teachers and an LEA representative do not routinely participate in CHDC student IEP meetings. See 20 U.S.C. § 1414(d)(1)(B).
3. CHDC IEPs Do Not Comply with the IDEA’s Requirement for Appropriate, Measurable Goals and Objectives.
The IDEA requires that each student’s IEP contain “a statement of measurable annual goals, including academic and functional goals.” 20 U.S.C. § 1414(d)(1)(A)(i)(II); see also 34 C.F.R. § 300.320(a)(2). This requirement is important because IEPs must address all areas affecting students’ ability to learn, including both academic and functional deficits, and must specify how goals will be measured, so that it is clear whether educational interventions are working for the student. IEPs must also contain appropriate, measurable transition goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills and the transition services needed to reach these goals. 34 C.F.R. § 300.320(b).
Most courts have addressed claims regarding an alleged lack of measurable goals as a procedural violation. See James D., 642 F. Supp. 2d at 817 n.9 (citing Edwin K. v. Jackson, No. 01-7115, 2002 WL 1433722, at *13 (N.D. Ill. July 02, 2002); Stanley C. v. M.S.D. of Sw. Allen County. Sch., 628 F. Supp. 2d 902, 961-62 (N.D. Ind. 2008); Virginia S. v. Dep’t of Educ., No.
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06-128, 2007 WL 80814, at *7 (D. Haw. Jan. 8, 2007); Leticia H. v. Ysleta Indep. Sch. Dist., 502 F. Supp. 2d 512, 518 (W.D. Tex. 2006); D.B. v. Ocean Twp. Bd. of Educ., 985 F. Supp. 457, 536 (D.N.J. 1997); M.C. v. Rye Neck Union Free Sch. Dist., No. 06-3898, 2008 WL 4449338, at *11 (S.D.N.Y. Sept. 29, 2008); Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811 (5th Cir. 2003)); but see Caitlin W. v. Rose Tree Media Sch. Dist., No. 03-6051, 2009 WL 1383304, at *6 (E.D. Pa. May 15, 2009) (analyzing alleged deficiencies in IEPs, including alleged lack of measurable goals, under the Rowley substantive analysis); Kevin T. v. Elmhurst Cmty. Sch. Dist. No. 205, No. 01-005, 2002 WL 433061, at *5 (N.D. Ill. Mar. 20, 2002) (same).
The testimony of the United States’ special education expert, the ADE Special Education Director, and Defendants’ special education consultants demonstrates that CHDC’s IEPs do not contain appropriate, measurable goals and objectives. See FOF ## 764-773. Dr. Thibadeau’s testimony illustrates and provides examples of how CHDC’s limited IEP goals and objectives are not sufficient in number or quality and are not measurable, depriving students of educational benefits. See FOF ## 765, 767-769. Although each IEP must include goals “designed to (aa) meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and (bb) meet each of the child’s other educational needs that result from the child’s disability,” 20 U.S.C. § 1414(d)(1)(A)(i)(II), some IEPs only include two objectives for an entire year. See FOF # 767. Other IEPs include only four objectives, two of which begin only after the other two are completed. See FOF # 767.
ADE also criticized CHDC for limiting its IEP development to academic goals. See FOF # 766. Consistent with Dr. Thibadeau’s opinion, ADE also found that in many cases, CHDC IEP goals and objectives are poorly written, the objectives often do not relate to the goals, and the objectives do not address the specific needs of the student. For example, ADE found that student
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BM’s IEP contained the same objectives two years in a row, and those objectives only addressed the use of a wheelchair. See FOF # 771. ADE also found that student CA’s IEP goals and objectives had little connection to each other and to CA’s needs, as the student had a two-yearold functional speech level and could only say a few words but was supposed to be “learning the language of algebra.” See FOF # 771.
Defendants’ special education consultant, Derek Nye, concurs with Dr. Thibadeau that at least some CHDC IEP objectives are not clear, particularly with regard to the conditions under which tasks were to be performed. Mr. Nye acknowledges that CHDC education staff would benefit from training regarding the writing of IEP goals and objectives. See FOF # 772. Defendants’ second special education consultant, Dr. Bruce Gale, testified that goal writing appears to be the biggest problem with CHDC IEPs. See FOF # 773.
CHDC IEP transition goals also violate IDEA requirements because they are neither appropriate nor measurable. CHDC students’ transition plans do not clearly specify what skills the student is learning or how student performance will be measured. See FOF ## 824-829. Even Defendants’ special education consultant, Derek Nye, found that CHDC transition plans lack clarity and fail to contain measurable goals, as required by the IDEA. See FOF # 825. Consistent with Dr. Thibadeau, ADE also found that CHDC students’ IEP transition plans did not include appropriate, measurable post-secondary goals based on an age-appropriate transition assessment related to training, education, employment, and, where appropriate, independent living skills, as required by the IDEA. See FOF # 836.
All of these deficiencies in IEP goals and objectives violate the IDEA’s procedural requirements and deprive CHDC students of educational benefits because students cannot
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receive comprehensive services if their IEPs do not map out the required level of services to meet their academic, functional, and transition needs and provide the required mechanism for measuring progress.
4. CHDC IEP Teams Fail To Consider IDEA-Required Factors in Developing Students’ IEPs.
The IDEA prescribes certain required factors that IEP teams must consider in developing students’ IEPs, including students’ academic, developmental, functional, and communication needs. 34 C.F.R. § 300.324(a). The evidence demonstrates that CHDC IEP teams do not consider all of the IDEA-required factors, resulting in IEPs that do not provide comprehensive services to students. CHDC assessment tools do not address all necessary areas of development to enable accurate assessment of present levels of performance and appropriate development of goals and objectives because these assessment tools fail to assess functional skill development in areas such as communication, self-help, domestic, leisure, and vocational skills; skill development in these areas is particularly important for older students. 34 C.F.R. § 300.324(a)(1)(iv); see FOF ## 782-783.
The IDEA also requires that assessments be administered in a manner that meets the communication style of the individual who is being assessed. 34 C.F.R. § 300.304(c)(1)(ii). CHDC has not met this obligation because it has not offered these assessment accommodations to all students with disabilities. For example, a CHDC student with a visual impairment did not receive an assessment because it was typically offered in pictoral form, and a CHDC student with a hearing impairment did not receive a different assessment because a sign language interpreter was not available. See FOF # 787.
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5. CHDC Fails To Ensure That CHDC Students Receive Regular or Alternate Statewide or Districtwide Assessments, as Required by the IDEA.
The IDEA, in addition to the No Child Left Behind Act, requires that students with disabilities participate in statewide assessments to the same extent as their non-disabled peers – by participating in: (1) general statewide assessments without accommodations; (2) general statewide assessments with accommodations; or (3) alternate assessments. See 20 U.S.C. § 1412(a)(16) (requiring that “[a]ll children with disabilities are included in all general State and districtwide assessment programs, including assessments described under [20 U.S.C. § 6311], with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs”). To the extent that schools deem alternate assessments more appropriate for students with disabilities than general assessments, alternate assessments must be “aligned with the State’s challenging academic content standards and challenging student academic achievement standards” and “measure the achievement of children with disabilities against those standards.” 20 U.S.C. § 1412(a)(16).
CHDC students do not receive: (1) general statewide assessments without accommodations; (2) general statewide assessments with accommodations; or (3) alternate assessments. See FOF # 780. The State’s failure to ensure that each CHDC student participates in statewide and districtwide assessment programs violates the IDEA and deprives CHDC students of the opportunity to access and benefit from the State’s challenging academic content standards and student academic achievement standards. See 20 U.S.C. § 1412(a)(16); see also Leighty v. Laurel Sch. Dist., 457 F. Supp. 2d 546, 561 (W.D. Pa. 2006) (citing 20 U.S.C. § 1412(a)(16) and noting that “Congress has made it clear that, to the extent possible, disabled children are to be educated and assessed in the same manner as their nondisabled peers”). Without these required statewide and districtwide assessments, there is no indication of whether
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CHDC students are accessing and benefitting from the State’s academic standards, and students’ educational opportunities suffer.
6. CHDC Routinely Fails To Invite a Representative of the Agency or Agencies Likely To Provide Transition Services To Assist CHDC Youth in Transitioning to Postsecondary Educational Services or to a Less Restrictive Environment.
The IDEA requires that, to the extent appropriate, schools invite a representative of any public agency that is likely to provide transition services to a student’s IEP meeting if transition services are to be discussed, with the student or parent’s consent (when the student has not reached the age of majority). 34 C.F.R. § 300.321(b). Absent outside agency representation, there is no individual at the IEP meetings with the knowledge of and ability to facilitate students’ transition from secondary school to post-secondary adult life, which is particularly harmful for students such as those at CHDC, who have ongoing needs for comprehensive services and supports.
Both the United States’ special education expert and Defendants’ special education consultant Bruce Gale found that outside agency representatives do not participate in IEP meetings for CHDC students, as required by the IDEA. See FOF ## 831-832. This deficiency deprives CHDC students of important opportunities to access services that may be provided by outside agencies to facilitate postsecondary education or education in a less restrictive environment.
ADE also cited CHDC for non-compliance with due process standards because, pursuant to ADE’s evaluation, “[t]here was insufficient evidence” that notices to parents identify any other agency or agencies that will be invited to send a representative to CHDC student IEP meetings to discuss transition services. See FOF # 834. Without notifying parents of the outside
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agency or agencies who may be invited to send a representative to participate in IEP meeting discussions regarding transition services, CHDC cannot obtain the required parental consent for the agency representative’s participation. As a result, CHDC students are deprived of a key voice in the conversation identifying appropriate transition services.
B. CHDC Students’ IEPs and Services Provided Therein Are Not Reasonably Calculated To Enable CHDC Students To Receive Educational Benefits.
Under Rowley, even if the State has complied with the procedural requirements of the IDEA, FAPE is not met unless “the individualized educational program developed through the Act’s procedures [is] reasonably calculated to enable the child to receive educational benefits.” 458 U.S. at 206-07; see also Lathrop R-II Sch. Dist., 611 F.3d at 424 (applying two-step Rowley analysis to IDEA case); Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027, 1035 (8th Cir. 2000) (“The standard to judge whether an IEP is appropriate under IDEA is whether it offers instruction and supportive services reasonably calculated to provide some educational benefit to the student for whom it is designed.”).
The education offered to CHDC students is not reasonably calculated to provide education benefit in that: (1) students are not all in the least restrictive environment, see FOF ## 837-859, and CHDC services do not target skill development to allow progress toward more integrated settings, see FOF # 860-861; (2) related services necessary to allow students to benefit from instruction are not offered to all students, see FOF ## 788-822; (3) assistive technology necessary for students to benefit from instruction is not always functional, see FOF ## 806-810; (4) students are not receiving adequate hours of instruction, see FOF ## 741-763; (5) transition planning does not address student needs and lacks outside agency participation, see FOF ## 823836; and (6) teachers lack adequate training and supervision to appropriately implement
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students’ IEPs and collect reliable data regarding students’ skill acquisition and behavior reduction. See FOF ## 862-873.
1. CHDC Students Are Not All Receiving Education and Extra-Curricular Activities in the Least Restrictive Environments Appropriate to Their Needs.
Educating children in the least restrictive environment in which they can receive an appropriate education is one of the IDEA’s most important substantive requirements, “reflecting [the IDEA’s] ‘strong preference’ that disabled children attend regular classes with non-disabled children and a presumption in favor of placement in the public schools.” T.F. v. Special Sch. Dist. of St. Louis County, 449 F.3d 816, 820 (8th Cir. 2006) (quoting S.D., 88 F.3d at 561). The IDEA explicitly requires that, “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §§ 300.114 & 300.117.
In interpreting this statutory requirement, the Eighth Circuit has stated: “Children who can be mainstreamed should be mainstreamed, if not for the entire day, then for part of the day; similarly, children should be provided with an education close to their home, and residential placements should be resorted to only if these attempts fail or are plainly untenable.” T.F., 449 F.3d at 820 (internal quotation marks omitted). Because “the IDEA creates a preference for mainstream education,” placement in a segregated setting is appropriate “only if the services that
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make segregated placement superior cannot be feasibly provided in a non-segregated setting.” Pachl v. Seagren, 453 F.3d 1064, 1067 (8th Cir. 2006) (internal quotations omitted).11
The IDEA requires that states educate students with disabilities alongside students who
do not have disabilities whenever possible. Rowley, 458 U.S. at 202. As the Rowley Court
noted, “[w]hen that ‘mainstreaming’ preference of the Act has been met and a child is being
educated in the regular classrooms of a public school system, the system itself monitors the
educational progress of the child.” Id. at 202-03. This is because “[r]egular examinations are
administered, grades are awarded, and yearly advancement to higher grade levels is permitted for
those children who attain an adequate knowledge of the course material.” Id. at 203.
Accordingly, “[t]he grading and advancement system thus constitutes an important factor in
determining educational benefit.” Id. Similarly, the IDEA articulates the purpose of integration
by explaining that the best outcomes for children with disabilities result from “having high
expectations for such children and ensuring their access to the general education curriculum in
the regular classroom, to the maximum extent possible.” 20 U.S.C. § 1400(c)(5)(A).
11 Pachl notes that removing a child from the mainstream setting is permissible when “the handicapped child would not benefit from mainstreaming, when any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, and when the handicapped child is a disruptive force in the non-segregated setting.” 453 F.3d at 1068 (internal quotation marks omitted). To the extent Defendants claim that students are at CHDC for behavioral reasons, the Eighth Circuit has held that removal of a dangerous child with a disability from her current educational placement due to behavioral issues must be supported by evidence “(1) that maintaining the child in that placement is substantially likely to result in injury either to himself or herself, or to others, and (2) that the school district has done all that it reasonably can to reduce the risk that the child will cause injury.” Light v. Parkway C-2 Sch. Dist., 41 F.3d 1223, 1228 (8th Cir. 1994). The records produced by Defendants do not include evidence supporting these exceptions, particularly considering that CHDC students are not mainstreamed to any extent, unlike in Pachl, which involved a dispute between 70% and 100% mainstreaming. See Pachl, 453 F.3d at 1068-69.
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At CHDC, however, students are not benefitting from instruction alongside non-disabled peers. CHDC IEPs do not indicate a grade level, and students do not receive grades as they do in public schools. See FOF # 777. Students also no longer have the opportunity to participate in statewide and districtwide assessments, see FOF # 780; 20 U.S.C. § 1412(a)(16), and IEPs are not appropriately modified when students exhibit lack of progress. See FOF ## 774-775; M.M. v. Special Sch. Dist. No. 1, 512 F.3d 455, 461 (8th Cir. 2008) (“The IDEA required the District to revise [the student’s] IEP as appropriate to address any lack of expected progress toward the annual goals and in the general education curriculum.”) (internal quotation marks omitted). The undisputed fact that no CHDC student attends a single class or extracurricular activity with his or her non-disabled peers establishes that CHDC students are not educated in the least restrictive environment, in violation of the IDEA. See FOF # 838. Nor is there any indication from any of CHDC students’ IEPs that IEP teams conducted the required analysis of whether “the services that make segregated placement superior cannot be feasibly provided in a non-segregated setting.” Pachl, 453 F.3d at 1067-68.
Instead, CHDC teachers have noted that CHDC is not the least restrictive environment for educating all CHDC students, see FOF ## 848-850, and IEP teams routinely and unlawfully “check the boxes” justifying the most restrictive placement possible for CHDC students, without any explanation of how the Eighth Circuit’s required showing is met. See Indep. Sch. Dist. No. 284 v. A.C., 258 F.3d 769, 774 (8th Cir. 2001) (“We have reversed a state decision concerning an IEP where no educational reasons were given for placing a disabled child in a separate learning environment.”) (emphasis added).12 This requirement cannot be overridden for the convenience
12 Notably, the missing reason must be “educational,” not behavioral, as any purported reason for educating CHDC students solely at CHDC appears to be. See A.C., 258 F.3d at 774.
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of administrators. See Pachl, 453 F.3d at 1070 (“As the Pachls note, under the IDEA, state educational agencies such as the Department have affirmative responsibilities to ensure that the provisions of the IDEA requiring placement in the least restrictive environment are implemented.”); T.F., 449 F.3d at 821 (“[T]he school district should have had the opportunity, and to an extent had the duty, to try these less restrictive alternatives before recommending a residential placement.”) (emphasis added).
Students’ emotional or behavioral issues, or an apparent lack of community mental health services, cannot be an excuse to institutionalize youth and educate those same youth in the most restrictive environment; rather, students must be provided with appropriate supports and services in order to benefit from educational services in the least restrictive educational environment. See 20 U.S.C. § 1414(d)(3)(B)(i) (requiring an IEP team to, “in the case of a child whose behavior impedes the child’s learning and that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior”). In addition to the IDEA’s requirement for provision of appropriate behavioral supports and services, the IDEA specifically requires that education be provided in the least restrictive environment. Pachl, 453 F.3d at 1067 (noting IDEA incorporates a clear “preference for mainstream education”).
CHDC students also do not participate in extracurricular activities with their non-disabled peers on a regular basis. See FOF # 838. Federal law requires that, “[i]n providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in [34 C.F.R.] § 300.107, each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child.” 34 C.F.R. § 300.117. Such nonacademic and extracurricular services and activities
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include “counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available.” 34 C.F.R. § 300.107(b). CHDC’s predetermined placement of all students at the CHDC school, with only sporadic interaction with their non-disabled peers, falls woefully short of satisfying the requirements of federal law, and CHDC students continue to not receive the IDEA-mandated educational benefit of interaction with their non-disabled peers.
2. CHDC Does Not Provide Related Services, Including Communication/Audiology and Behavioral/Psychology Services, to All Students Who Require Such Services.
The IDEA requires that students receive any related services that are necessary for them to access and benefit from education. 20 U.S.C. §§ 1400(d)(1)(A), 1401(9), 1401(26)(a). Related services include “transportation, and such developmental, corrective, and other supportive services [such as] speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services . . ., counseling services, including rehabilitation counseling, orientation and mobility services, and medical services.” 20 U.S.C. § 1401(26)(a). Provision of all appropriate related services is a requirement under the IDEA for which denial can result in the failure to provide FAPE. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1026-30 (8th Cir. 2003).
CHDC does not provide related services to all students who require them, including speech services, communication device implementation, psychological/behavioral services, and sign language interpretative services. See FOF ## 789-794, 802-806, 811-820. Related services
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also are not integrated with other CHDC services, resulting in additional gaps in services to CHDC students and in insufficient information shared among educational staff regarding the efficacy of services that are in place. See FOF ## 795-801. ADE itself found numerous examples of CHDC students whose education files indicated that they were not receiving all required related services, such as communication and behavioral/mental health services, including students BR, BB, KF, CW, and MB. See FOF ## 790-791, 814.
The IDEA requires that, if a student’s behavior or other special factor impacts his or her learning, the student’s IEP must address that need. 20 U.S.C. § 1414(d)(3)(B)(i) (The IDEA requires an IEP team to, “in the case of a child whose behavior impedes the child’s learning and that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.”). Schools deprive students of educational benefits, and violate the IDEA, when they fail to develop and implement behavior management plans as appropriate. See, e.g., Neosho R-V Sch. Dist., 315 F.3d at 1029-30.
According to CHDC IEPs, many CHDC students were placed at CHDC because of their behaviors. See FOF # 812. CHDC IEPs also indicate that students have behavioral problems calling for behavioral services, yet these IEPs do not list any such services being considered or provided. See FOF # 792. Nor does CHDC use functional behavior assessments with all CHDC students and, to the extent CHDC uses functional behavioral assessments, they are not comprehensive in scope. See FOF # 812. In addition, despite the fact that a significant percentage of youth admitted to CHDC were admitted in part because of behavioral problems, CHDC does not even offer any counseling or psychotherapy services. See FOF # 794.
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Consistent with Dr. Thibadeau’s observations, ADE also noted that in most cases, students’ education files do not include behavior plans or goals and objectives to address behavior in the education setting. See FOF # 813. ADE also found that CHDC did not necessarily address problem behaviors in the classroom for students who were on shortened school days reportedly for behavior issues. See FOF # 813.
All students who require communication skills development are entitled to and should be receiving such related services; otherwise, these students are not receiving FAPE. 20 U.S.C. §§ 1414(d)(3)(B)(iv), 1401(2), 1401(26)(a). Both Dr. Thibadeau and ADE found a number of CHDC students who should be receiving communication services but are not. See FOF ## 802810. Only 7 of the 21 non-verbal school-aged children at CHDC have augmentative communication devices. See FOF # 807. For the small number of CHDC students provided assistive technology, CHDC staff does not encourage the use of these devices and, consequently, students do not consistently use them. See FOF # 807. ADE also found instances of CHDC students not having access in the classroom to their alternative or augmentative communication devices, such as communication books or other communication devices. See FOF # 808.
3. CHDC Fails To Ensure That Hearing Aids Worn by Students with Hearing Impairments Are Functioning Properly, as Required by the IDEA.
The IDEA and its implementing regulations require that each public agency ensure that hearing aids worn in school by children with hearing impairments are functioning properly. 34 C.F.R. § 300.113(a); J.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 433 (9th Cir. 2010). Students with hearing impairments need consistent access to properly functioning assistive technology to access and benefit from educational services. Clearly, if a student cannot hear the educational instruction being presented, he or she cannot benefit from it.
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As demonstrated by ADE’s findings and related testimony, CHDC fails to ensure that hearing aids worn by students with hearing impairments are functioning properly. See FOF # 809-810. This violation has deprived CHDC students with hearing impairments of educational benefits, including students LW, JB, and BB. See FOF # 809. ADE also found no evidence at CHDC of follow-up regarding poor vision and hearing and no evidence of formal augmentative alternative communication assessments in CHDC education files. See FOF # 810.
4. CHDC’s Provision of a Shortened School Day for All Students Violates the IDEA.
CHDC’s decision to provide a shortened school day to all students, regardless of their individual needs, violates the IDEA. CHDC students are entitled to a school day that is just as substantial as their non-disabled peers. Ark. Admin. Code § 005.18.2-2.15.3. Accordingly, CHDC students are entitled to a six-hour instructional day. Ark. Admin. Code § 005.15.14-3. An instructional day means the amount of time spent engaged in instructional activities and excludes lunch, recess and nonacademic or extracurricular activity periods, unless such activities are considered as special education instruction on the individual student’s IEP. Ark. Admin. Code § 005.18.2-2.43. If CHDC students receive special education and related services that fail to meet the “standards of the State educational agency,” they are not receiving a FAPE. 20 U.S.C. § 1401(9)(B). The undisputed evidence shows that no CHDC student receives six hours of planned instruction, as defined by Arkansas law. Rather, CHDC’s planned instructional time of 1.5 to 2.5 hours per day falls woefully short of the required 6-hour school day for students with and without disabilities. See FOF ## 741-763. Defendants’ failure to provide all CHDC students with an instructional day that complies with Arkansas state law violates the IDEA.
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CHDC has determined that no student will receive a full day of educational instruction and has instead assigned all students to shortened school days of between 1.5 and 2.5 hours. See FOF ## 744-745. CHDC’s uncertified special education coordinator separately admitted to Defendants’ special education consultant that she pre-determines that new school-aged admissions to CHDC do not need (and will not receive) a full-time education program. See FOF # 747. This blanket policy violates students’ IDEA rights to an education that meets the State Education Agency’s standards. As ADE found, CHDC fails to make individualized determinations of the appropriate length of an instructional day for any of its students, all of whom are placed on shortened school days in violation of the IDEA. See FOF ## 750-752.
5. CHDC’s Transition Planning and Transition Services Do Not Satisfy IDEA Requirements.
The IDEA requires that, once a student with disabilities turns 16 years old, schools provide a coordinated set of services to support the student as he or she moves from secondary education to post-secondary life, including vocational training, independent living skills, and supported employment. 34 C.F.R. § 300.320(b). Transition services for CHDC students do not address the needs of students who are 16 years or older because CHDC students’ IEPs do not contain appropriate, measurable goals for transition services by failing to clearly specify what skills the student is learning or how student performance will be measured. See FOF ## 824829. Even Defendants’ special education consultant, Derek Nye, found that CHDC transition plans lack clarity and fail to contain measurable goals, as required by the IDEA. See FOF # 825.
Further, CHDC makes little attempt to engage outside agencies in planning for students’ transition to adult life, often failing to request parental permission and always failing to advise parents of the importance of granting permission for outside agency attendance at IEP meetings.
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See 34 C.F.R. § 300.321(b); FOF # 832. As a result, representatives of outside agencies needed for transition do not generally participate in transition planning for CHDC students. See FOF ## 832-836. Without outside agency contact, parents, guardians, and students are not aware of the range of services available in their communities, and service providers do not know about the needs of CHDC students who may need services upon their transition. See FOF # 833. Lack of outside agency involvement in transition services risks students’ ability to access and benefit from services to transition them from secondary education to adult life, which is particularly important for students who need comprehensive supports and services. See FOF # 833.
6. Education Staff Lack Adequate Training and Supervision To Appropriately Implement Students’ IEPs.
Education staff must be appropriately and adequately prepared and trained, and those personnel must have the content knowledge and skills to serve children with disabilities. 34 C.F.R. § 300.156(a). To that end, CHDC must take measurable steps to recruit, hire, train, and retain “highly qualified” personnel to provide special education and related services to children with disabilities. 34 C.F.R. § 300.156(d). CHDC teachers lack adequate training and supervision to appropriately implement students’ IEPs and collect reliable data regarding students’ skill acquisition and behavior reduction. On-site observations revealed that teachers were not able to engage students in learning because they were not familiar with student preferences and interests. See FOF # 863. CHDC teacher Throndia Smith confirms that CHDC does not require teachers to receive training in areas relevant to the needs of the students they teach or train teachers on conducting preference assessments. See FOF ## 864-865.
CHDC related services staff lack training in special education, and education staff lack training in related services. See FOF # 801. When ADE provided training to CHDC psychology
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staff regarding their IDEA obligations in July 2010, staff indicated a lack of understanding regarding their responsibilities and appeared to be under the mistaken impression that they were only charged with meeting ICF/MR CMS funding standards. See FOF # 801. Defendants’ special education consultant, Dr. Gale, agrees that CHDC would benefit from more in-service training in understanding the requirements of the IDEA. See FOF # 866.
CHDC must adopt effective procedures for acquiring and disseminating to teachers and administrators significant information from educational research, demonstrations, and similar projects, and for adopting, where appropriate, promising educational practices developed through such projects. 20 U.S.C. § 1232e. ADE found insufficient evidence that CHDC has adopted the required promising educational practices for the provision of special education instruction. See FOF # 870. In sum, CHDC education staff are not appropriately and adequately prepared and trained, with the content knowledge and skills to serve children with disabilities, as required by the IDEA. See FOF ## 862-873.
C. CHDC’s Failure To Meet the Standards of the State Educational Agency Establishes an Independent Basis for Findings of IDEA Violations.
Under the IDEA, in order to provide FAPE, a disabled student’s IEP must “meet the standards of the State educational agency.” 20 U.S.C. § 1401(9)(B). ADE recently cited CHDC for failing to make FAPE available to all students with identified disabilities, as required by federal and state law. See FOF ## 727-728. ADE found many of the same IDEA deficiencies as the United States’ special education expert.
ADE based its determination that CHDC fails to provide FAPE on 15 areas of noncompliance with federal and state special education requirements, including four findings of noncompliance regarding IEP requirements. Regarding IEPs, ADE found that: (1) CHDC fails to
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consider special factors that impede a student’s learning or that of others when developing the student’s IEP; (2) IEP components do not address the unique needs of individual students; (3) CHDC transition plans are neither based on age appropriate transition assessments nor describe appropriate measurable post-secondary goals; and (4) parents are not informed of CHDC student progress toward meeting annual goals and short term objectives on a quarterly basis. See FOF # 730. CHDC’s failure to meet the standards of the State educational agency independently establishes IDEA violations pursuant to 20 U.S.C. § 1401(9)(B).
In sum, Defendants unlawfully deprive CHDC students of educational benefits because: (1) CHDC does not offer students a full continuum of educational placements; (2) neither an LEA representative nor a regular education teacher routinely attends CHDC IEP meetings; (3) CHDC IEPs do not contain appropriate, measurable goals and objectives; (4) CHDC IEP teams fail to consider IDEA-required factors in developing students’ IEPs; (5) CHDC students do not receive regular or alternate statewide or districtwide assessments; and (6) CHDC routinely fails to invite agency representatives to assist CHDC youth in transitioning to postsecondary services.
The evidence also proves that CHDC student IEPs and the services provided therein are not reasonably calculated to enable CHDC students to receive educational benefits because: (1) students do not spend adequate time in special education classes; (2) related services are not provided to all students who require them; (3) transition planning does not address student needs and lacks outside agency participation; (4) students are not being educated in the least restrictive environment; (5) CHDC services do not target skill development to allow progress toward more integrated settings; and (6) education staff lack adequate training and supervision to appropriately implement students’ IEPs.
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Finally, Defendants violate the IDEA because CHDC’s educational services do not meet the standards of the state educational agency - ADE.
XVI. CONCLUSION Defendants’ system for delivering care and services to CHDC residents illegally
condemns individuals at CHDC to lifelong institutionalization. The vast majority of people currently living at CHDC were first admitted as children, many of them not even ten years old. Once admitted, most CHDC residents spend the rest of their lives within the confines of the institution, never re-joining the communities and families from which they came, nor given a meaningful opportunity to maximize their capacity for independent, self-directed living. CHDC currently admits more children than adults, discharges just a handful of people to more integrated settings each year, and plans for the long-term stay of virtually all of its other residents, even the youngest.
Defendants promote this lifelong institutionalization by depriving residents and their guardians of information that is critical to their ability to make informed decisions about whether CHDC is the most integrated setting appropriate to residents’ needs. An objective, reasonable assessment – one that is based solely on a resident’s specific needs and capabilities and identifies the particular services necessary to meet those needs and maximize those capabilities – is essential for families making important, often difficult, placement decisions. Without independent, reasonable assessments, guardians naturally are inclined to maintain the status quo of continued institutionalization, community providers are unable to tailor services to the needs of those currently institutionalized, and residents spend their lives confined to CHDC. This discriminatory system that Defendants have premised on the lifelong institutionalization of
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people with disabilities cannot be reconciled with the ADA’s mandate that Defendants serve people with disabilities in the most integrated setting.
Defendants further seal residents’ fate of lifelong institutionalization through their overall failure to provide adequate care and services at CHDC, which causes serious harm, and even death, to residents. Children, the most vulnerable to the debilitating effects of institutionalization, are denied educational services to which they are entitled and thereby deprived of the opportunity for training and skill-development that would assist them in leading more integrated, productive lives.
Defendants likewise fail to provide CHDC adults with supports and services that would enable them to live as independently as possible. Instead, Defendants subject CHDC residents to extreme forms of physical restraint for unnecessary and prolonged periods of time, as well as harmful and excessive psychiatric medications, in violation of residents’ constitutional rights and in lieu of professional treatment that would maximize residents’ capacities for independent living. Defendants also deny CHDC residents necessary medical care, including nutritional and physical supports, and fail to protect residents from avoidable injuries and other harm, in violation of the Constitution. Rather than provide CHDC residents access to treatment that would maximize their capabilities, Defendants expose them to conditions that threaten their lives and safety.
Thus, while confining individuals in a harmful, debilitating facility, Defendants deprive residents the opportunity to live in the most integrated setting appropriate for the residents’ needs, thereby ensuring that Defendants’ unlawful, harmful, discriminatory system for providing services to individuals with developmental disabilities will continue.
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February 10, 2011

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
BENJAMIN O. TAYLOE, JR. Deputy Chief Special Litigation Section
LAURA L. COON Special Counsel Special Litigation Section
/s/ Christopher N. Cheng CHRISTOPHER N. CHENG JACQUELINE K. CUNCANNAN KERRY KRENTLER DEAN MATTHEW J. DONNELLY VINCENT P. HERMAN Attorneys for Plaintiff U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 514-6255 (202) 514-6903 (fax)

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CERTIFICATE OF SERVICE I certify that on February 10, 2011, through the Court’s CM/ECF system, I caused a copy of the foregoing UNITED STATES’ POST-TRIAL BRIEF, to be served to the following: Cordelia Elias, Esq. Thomas York, Esq. Donald B. Zaycosky, Esq. York Legal Group Attorneys for the Defendants Lori Freno Engman, Esq. Arkansas Attorney General's Office Attorney for the Defendants
Respectfully submitted, /s/ Christopher N. Cheng
CHRISTOPHER N. CHENG Attorney for the United States
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

UNITED STATES OF AMERICA

Plaintiffs,

v.

Case

No. 4:09CV00033 JLH

STATE OF ARKANSAS, et al.,

Defendants.

_____________________________/

DEFENDANTS’ POST-TRIAL BRIEF

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TABLE OF CONTENTS

I. INTRODUCTION

3

II. BRIEF DESCRIPTION OF CHDC

4

III. PLAINTIFFS BURDEN OF PROOF

12

A. Plaintiff must prove that Defendants’ treating professionals

substantially departed from generally acceptable professional

standards

14

B. Plaintiff’s experts’ opinions should be accorded little to no weight

17

IV. DOJ HAS FAILED TO PROVE A PATTERN OR PRACTICE OF ABUSE

AND NEGLECT AT CHDC AND THEREFORE FAILS TO MEET THEIR

BURDEN OF PROOF UNDER CRIPA

29

A. The Incident Review Committee

32

B. Incidents and Injuries

34

C. Individual Program Planning

39

D. Allegations of Maltreatment

42

E. There is No Culture of Silence at CHDC

45

F. The Personal Opinions of Carla Jo Osgood

46

V. CONDITIONS AT CHDC

52

A. CHDC Medical and Psychiatric Services

52

B. CHDC Psychology Department

155

C. CHDC Habilitation, Nutritional Management, Communication,

Speech Therapy, Occupational Therapy, Physical Therapy and

Oral Hygiene

201

VI. DOJ HAS NOT DEMONSTRATED A VIOLATION OF THE INDIVIDUALS

WITH DISABILITIES EDUCATION ACT (IDEA)

285

VII. COMMUNITY PLACEMENT

323

2

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I. INTRODUCTION Defendants, the State of Arkansas, The Arkansas Department of Human Services, the
Arkansas Division of Developmental Disabilities Services, and the Conway Human Development Center, as well as official-capacity Defendants Mike Beebe, John Selig, James C. Green, and Calvin Price (hereinafter collectively referred to as “Defendants,” “the State,” or “State of Arkansas”) set forth the following:
As described more fully herein, Plaintiff bears the burden of proving that Defendants are violating the Fourteenth Amendment rights of CHDC residents, the Americans with Disabilities Act, and the Individuals with Disabilities Act. Plaintiff did not meet that evidentiary burden at trial. Further, Plaintiff failed to request any specific relief from the Court and offered no evidence at trial in support of any type of relief. Defendants submitted evidence at trial that its programs and services may be impacted by any relief sought by Plaintiff, and Defendants reserve their right to assert a fundamental alteration defense to the extent that Plaintiff attempts to request specific relief from the Court.
Based on flawed methodologies, unsubstantiated assumptions, and misrepresentations of fact, the Plaintiff’s experts offered unreliable and unfounded opinions, and in some instances bald misrepresentations, about the services provided by the State of Arkansas to its developmentally disabled citizens at the Conway Human Development Center. None of Plaintiff’s experts conducted a scientifically valid or objective review of services at CHDC. Plaintiff’s experts also could not identify any relevant, accepted professional standards to support their claims, demonstrating that their opinions were nothing more that personal, idiosyncratic opinions. In contrast, the experts testifying for the State of Arkansas provided reasonable, scientifically valid, and factually accurate opinions regarding the services at CHDC. As
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described more fully below, Defendants’ experts demonstrated that all relevant accepted professional standards are met or exceeded at CHDC.
Plaintiff similarly failed to demonstrate any discrimination by Defendants on the basis of a disability. Plaintiff failed to demonstrate that any specific school-aged resident has been denied a free and appropriate public education or is not being served in the least restrictive environment. Plaintiff offered no evidence that any guardian of a CHDC resident wants his or her ward to be discharged from CHDC. Plaintiff bore the burden of demonstrating that evidence and demonstrating that Defendants failed to provide such accommodation. Similarly, Plaintiff offered no evidence that CHDC’s treating professionals have failed to exercise professional judgment about where CHDC’s residents should receive services, or regarding any other component of care services provided to Center residents. The Plaintiff has not specified what relief it seeks, and likewise, the record does not support any argument that Plaintiff is entitled to any relief whatsoever. Defendants submit that this Court should resist Plaintiff’s attempt to force it to assume the management of the State of Arkansas’ provision of services to the developmentally disabled.
II. BRIEF DESCRIPTION OF THE CONWAY HUMAN DEVELOPMENT CENTER The Conway Human Development Center (“CHDC”) serves approximately 500
developmentally disabled individuals. Tr. at 763, 764 (J. Green). Ninety percent of CHDC residents are severely or profoundly intellectually disabled. Tr. at 5805, 5810 (Walsh). Approximately 72% percent of CHDC residents have profound developmental disabilities; 18% have severe developmental disabilities; 8% have moderate developmental disabilities; and 2% have mild developmental disabilities. Tr. at 5810 (Walsh). Within population of CHDC
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residents, approximately 140-150 residents have fragile health; approximately 160-170 residents have behavioral issues; approximately 250-275 residents receive psychotropic medications; and approximately 190 are not ambulatory. Tr. at 5811 (Walsh).
Overall, CHDC serves residents who are low functioning and have extremely significant physical and mental impairments. Tr. at 5811 (Walsh). The high level of developmental disabilities at CHDC impacts how the facility is operated. Tr. at 5810 (Walsh). The structure at CHDC is, in part, required by CMS regulations and the ICF/MR model. 42 CFR §§ 483.400483.480, Tr. at 5808 (Walsh).
The facility is regularly surveyed by Centers for Medicaid Services (CMS) and the Arkansas Office of Long Term Care (OLTC) to ensure that they stay in compliance with the ICF/MR regulations in order to continue to receive federal funding. Tr. at 4998 (Miller). CHDC complies with all ICF/MR regulations and is certified by CMS. Tr. at 4998 (Miller). CHDC has also sought and obtained independent accreditation from CARF. Tr. at 4998, 4999 (Miller).
Prior to a resident’s admission to CHDC, DDS determines whether an individual is eligible for ICF/MR services and provides information about ACS waiver services as an alternative to admission to an ICF/MR. Tr. at 474, 812, 1692, 1693 (J. Green, C. Price). Each admission packet submitted to CHDC includes a request signed by the guardian of the individual requesting admission. Tr. at 1692-93 (C. Price). Many admissions to CHDC are for individuals unable to be served in other settings due to maladaptive behavior that cannot be accommodated. Tr. at 1721 (C. Price).
CHDC also takes individuals on a respite basis where they are not regularly admitted, but rather placed at CHDC for an emergency as-needed basis. Tr. at 1622 (Clendenin). If an individual is admitted on a respite basis, per ICF/MR regulations, CHDC does not create a new
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IPP for that individual. Rather, his or her existing IPP is used. Tr. at 1636 (Clendenin). Respite admissions have the same type of interdisciplinary team as regular admission though, and if an issue arises that is not addressed in that individual’s IPP, the team will convene and determine what interaction is need. Tr. at 1636-39 (Clendenin).
Each resident has an interdisciplinary team (“IDT”). The IDT includes treating professionals and non-professionals who provide services to the resident as well as a guardians and, in some cases, family members, who are charged with making decisions regarding the treatment and care required by the resident. Tr. at 813, 814 (J. Green). Among other things, the IDT is charged with preparing an Individualized Program Plan (“IPP”) for the resident who they serve. Tr. at 6000 (Walsh). Treating professionals continually make judgments about the residents they serve. Tr. at 6000 (Walsh). The IPP documents that those professional judgments have occurred. Tr. at 6000 (Walsh). The annual IPP meeting also ensures interdisciplinary communication and treatment for CHDC residents. Tr. at 6000 (Walsh).
Under and ICF/MR model, the team must reach consensus on what goals and objective are set for each resident. Tr. at 5907 (Walsh). Among other things, the interdisciplinary teams at CHDC set treatment and habilitation goals. Tr. at 5907 (Walsh). Each discipline participating in the interdisciplinary team brings its updated assessments and the team sets goals specifically for the individual they are serving. Tr. at 5907 (Walsh). Professional standards permit each discipline to bring forward suggested goals for CHDC residents, including habilitation goals, evaluate those goals as an interdisciplinary team, and, if a goal is adopted, put together a plan for training. Tr. at 5908 (Walsh). Non-professional staff, including direct care staff working in residences, may also bring an objective forward to the interdisciplinary team, but goals are set by the team. Tr. at 5907-08 (Walsh).
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In advance of every IPP meeting, CHDC sends a booklet to guardians entitled “Arkansas ACS Waiver Guide.” Tr. at 6778 (A. Green), Def. Ex. 410. That booklet was developed by DDS in conjunction with waiver providers to thoroughly explain Medicaid waiver services in Arkansas. Tr. at 6778-79 (A. Green). CHDC also provides that booklet to parents and guardians at the time of a resident’s admission. Tr. at 6778-79 (A. Green). Guardians are also sent a document entitled, “Individual's Choice of Alternative Community Services Waiver or Intermediate Care Facility,” which solicits the guardian’s choice to pursue alternate community waivers or continued services at CHDC. Tr. at 6777-78 (A. Green), Def. Ex. 406.
At the IPP meeting, CHDC’s program specialists and other team members discuss waiver services with guardians, the interdisciplinary team reviews professional assessments, and the team and guardian discuss the individual’s needs, abilities, and where that individual or the guardian would like to receive services. Tr. at 849, 6778, 6728, 6729 (A. Green, B. Brewer). That discussion is documented in the IPP. Tr. at 849 (A. Green). Individuals are discharged from CHDC on a regular basis to either live at home with their families or often times to a group home or apartment funded by the State waiver program. Tr. at 1703-04, 6729 (C. Price, B. Brewer). CHDC is the least restrictive setting for the residents that it serves and all of the residents have chosen to reside at CHDC rather than receive services through the waiver. See e.g. Tr. at 3239, 3277 (Stoddard, Catron).
Although not required by ICF/MR regulations, CHDC has five teams that are led by individuals who have extensive experience working with developmentally disabled people. Tr. at 1662-1664 (Price). The team leaders are responsible for non-clinical supervision of psychological examiners, nurses, social services workers, program coordinators, speech language pathologists, habilitation training teachers, recreation workers, direct care staff, and
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housekeepers, who all directly interact with CHDC residents. Tr. at 6723 (B. Brewer). Team leaders also conduct administrative reviews, report and respond to reports for behaviors that require restraints, respond to any reports of injuries, including minor incidents and incidents that are reported to the IRIS. Tr. at 6723 (B. Brewer). The team leader is also responsible for interviewing, hiring and terminating some employees. Tr. at 6723 (B. Brewer).
The five teams at CHDC are habilitation and training team, sheltered living team, individual assistance team, intensive training team, and total care team. The habilitation and training team provides treatment and services for the individuals who are among CHDC’s highest functioning residents. Tr. at 1662, 1663, 1664 (Price). Some of these residents have been diagnosed with moderate and mild mental retardation. Tr. at 1662-1664 (Price). The sheltered living team provides services for profound to mild or moderate range. Tr. at 1662, 1663, 1664 (Price). The individual assistance team provides services for CHDC residents who are profoundly developmentally disabled. Tr. at 1662, 1663, 1664 (Price). The intensive training team cares for individuals who are in the lowest range of profound developmental disabilities and among the lowest functioning residents at CHDC. Tr. at 1662, 1663, 1664 (Price). The total care team provides treatment and services for the most medically fragile CHDC residents. Tr. at 1679 (Price). These individuals are profoundly disabled and have severe medical conditions. Tr. at 1662, 1663, 1664 (Price). The CHDC residences Willow 1 and Willow 2 are part of the total care team. Tr. at 1679 (Price). Each team also has a shift coordinator who ensures that staffing ratios are met, conducts meal audits, bathing audits, environmental audits, interaction audits, and ensures that employees are where they are supposed to be and doing the job they are supposed to be doing, and ensures that CHDC residents receive the right care and services. Tr. at 6721, 6723 (B. Brewer).
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CHDC personnel have the best interests of the residents at heart. Tr. at 5799 (Walsh). CHDC has a wide range of employees who provide services to its residents. Tr. at 4874 (Murphy). They are energetic and engaged with CHDC residents and cooperative and assistive in their work. Tr. at 5799, 5961 (Walsh). Because of the severe impairments of CHDC residents, staff are specially trained in specific healthcare needs and high level personal care needs. Tr. at 5811 (Walsh). Most CHDC direct care staff work with the same residents, but CHDC also employs float staff who provide direct care services in different units when additional staff is needed. Tr. at 4874 (Murphy). At no time is a float staff left to work in an area without the presence of an experienced staff member to supervise. Tr. at 4874, 4875 (Murphy).
All CHDC employees, including direct care staff, participate in competency-based training in many areas. Tr. at 4991, 4992 (Miller). Staff training is intensive at CHDC, consisting of weeks of classroom instruction covering issues such as detection of medication side effects, thickening of liquid, positioning, bathing, risk of fractures, maltreatment and other important topics for new staff. Tr. at 3325, 3326 (Sheppard). There are three phases of staff training Phase I, for new staff; Phase II, for direct care staff who have worked at CHDC for more than three months as a trainee; and Phase III for supervisory staff. Tr. at 4991 (Miller). In addition to the Phase training, every employee at CHDC also must go through annual retraining. Tr. at 4991, 4992 (Miller).
Calvin Price is the superintendant of CHDC. Tr. at 1656 (Price). Mr. Price is responsible for the total operation of CHDC 24 hours a day, seven days a week. Tr. at 1656 (Price). The superintendant administratively supervises all CHDC employees and directly supervises CHDC’s administrative office and department heads. Tr. at 6863, 6864 (Price). CHDC’s department heads have extensive experience working with individuals with developmental
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disabilities and are dedicated to providing services to CHDC residents. Tr. at 6865 (Price). The various department at CHDC and its contract with UAMS ensure that its is able to provide all services needed for its residents or have immediate to professionals who can. Tr. at 6864 (Price). Defendants rely on a large number of policies in the daily operations of CHDC. Tr. at 6862, 6863 (Price). Def. Ex. 910,911, 912. Policies are usually created only after they are put into practice in the form of a protocol or guideline which is an effort to ensure that the policy includes all necessary practical aspects. Tr. at 6866, 6867 (Price). The creation and modification of those policies help CHDC to improve is delivery and oversight of services at the facility. Tr. at 6867 (Price).
CHDC has five human rights committees, one committee for each team at CHDC, which allows the committees to be closer to CHDC residents than similar committees in other facilities. Def. Ex. 912, Tr. at 5849, 5932 (Walsh). The human rights committees were set up by policy and their memberships include, nurses, doctoral level practitioners, and members of the larger community. Def. Ex. 910, Tr. at 5848 (Walsh). The CHDC psychological examiners are assigned to each of the human rights committees in a consulting, nonvoting role. Def. Ex. 911, Tr. at 5849 (Walsh). The role of the nonvoting members is to provide information and consultation to the other committee members. Tr. at 256, 258 (Osgood).
The human rights committee at CHDC reviews issues of residents’ rights such as the right to privacy, medical diagnosis, medications, behavior plans, safety plans and individual program plans. Tr. at 5009, 5010 (Miller). Among other things, the human rights committees review all behavior plans at CHDC before they are implemented. Tr. at 5850 (Walsh). If a CHDC resident has a safety plan and other behavior plans, all of those plans are reviewed by the human rights committee. Tr. at 5848. One-to-one staffing ratio is considered a restrictive
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procedure at CHDC, so it is reviewed by the human rights committee. Tr. at 5901 (Walsh). Although one-to-one staffing is considered a restrictive procedure by CHDC, it should not necessarily be considered a restraint when evaluating CHDC’s restraint use. Tr. at 5901 (Walsh).
Prior to submission to the human rights committee, CHDC behavior plans are developed as follows: the interdisciplinary team establishes an objective and a plan; the psych examiner formulates and formulizes the behavior intervention plan or plans; the team leader reviews the plan; the chief of psychology reviews the plan; the primary care physician reviews the plan; and any of the steps could be recursive. Tr. at 5849 (Walsh). Subsequent to the professionals’ respective reviews and prior to submission of a behavior plan to the human rights committee, written, informed consent is obtained from the guardian if it has not been previously obtained. Tr. at 5849 (Walsh). The CHDC satisfaction survey reveals that 97 percent of guardians are satisfied or very satisfied overall with CHDC. Tr. at 5956 (Walsh). The survey also reveals that 77 percent of guardians are very satisfied overall with CHDC. Tr. at 5956 (Walsh). CHDC’s consumer satisfaction survey is a direct measure of the quality of services at CHDC. Tr. at 6107 (Walsh).
If the CHDC human rights committee does not approve a behavior plan, the interdisciplinary team must fix whatever problem is identified by the human rights committee. Tr. at 5850 (Walsh). If the human rights committee does approve a behavior plan, it is sent to the superintendent for his approval, and then staff and other CHDC personnel are trained on the plan. Tr. at 5850 (Walsh). A behavior plan is only implemented after all staff, residents, and day programs are trained on the plan. Tr. at 5850 (Walsh).
In addition to the human rights committees, CHDC has another group of oversight committees called the incident review committees. Tr. at 5936 (Walsh). CHDC has unit based
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incident review committees and a central incident review committee. Tr. at 5936 (Walsh). CHDC’s unit based incident review committees meet every weekday, which provides a rapid review of incidents and allows immediate response when necessary. Tr. at 5936 (Walsh). If the IRC reviews an incident and requires more information or feels that the incident warrants further review, the IRC will refer the incident to the Team Leader for an Administrative Review. Tr. at 4872 (Murphy). The Central Incident Review Committee at CHDC does a second review of incidents that were reviewed by the unit incident review committees. Tr. at 5936 (Walsh).
The Central Incident Review Committee receives materials in a statistical compendium listing incidents. Tr. at 5936 (Walsh). The Central Incident Review Committee meets monthly to review the incidents from the past month. Tr. at 5936 (Walsh). Generally there are two types of incidents reviewed by the Central Incident Review Committee: (1) maltreatment and incidents that need to be entered into the state’s IRIS database and (2) property damage and workman’s compensation related issues. Tr. at 5936 (Walsh).
The membership of the Central Incident Review Committee is extensive. Tr. at 5937 (Walsh). The Central Incident Review Committee provides oversight review for identifying trends and policy directions and related issues. Tr. at 5937 (Walsh). The Central Incident Review Committee produces a quarterly incident report summary, which is a statistical report showing all the incidents that occurred in the prior quarter. Tr. at 5937 (Walsh).
III. PLAINTIFF’S BURDEN OF PROOF Plaintiff initiated this matter pursuant to the Civil Rights of Institutionalized Persons Act,
42 U.S.C. §§ 1997-1997j (“CRIPA”). CRIPA provides that the Department of Justice may initiate an action only for “such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment” of federal constitutional or statutory
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rights, privileges, and immunities. 42 U.S.C. § 1997a(a) (emphasis added); See also Messier v.
Southbury Training Sch., 916 F. Supp. 133, 137-38 (D. Conn. 1996) (contrasting the types of
relief available to private plaintiffs with the Attorney General’s right under CRIPA to seek only
“minimum corrective measures”).
Without the CRIPA statute the Department of Justice has no standing to enforce a claim
under Americans with Disabilities Act, 42 U.S.C. §§12101-12213 (“ADA”).
Prior to the enactment of CRIPA in 1980, controlling precedents dictated that the Justice Department had no authority to sue on behalf of institutionalized persons. See, e.g. United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir.1979). Under CRIPA, however, the Attorney General may bring suit for equitable relief to ensure the “minimum corrective measures” necessary to remediate “egregious or flagrant conditions which deprive [institutional residents] of any [federally protected] rights, privileges, or immunities,” provided the Attorney General finds that such deprivations occur “pursuant to a pattern or practice of resistance.” 42 U.S.C. § 1997a. Thus, the Justice Department may only sue on behalf of institutionalized persons if the strict requirements of CRIPA are satisfied, and may only seek “minimum corrective measures.”
Messier v. STS, 562 F. Supp 2d 294, 137.
In 1979, prior to the enactment of the CRIPA statute, the Department of Justice tried to
bring an action on behalf of residents of a developmental disability facility, alleging that their federal rights had been violated. U.S. v. Mattson, 600 F.2d 1295 (9th Cir. 1979). The District
Court dismissed the Complaint and the Ninth Circuit affirmed that decision. The Ninth Circuit
held that “the United States may not bring suit to protect the constitutional rights of the mentally
retarded without express statutory approval.” U.S. v. Mattson, 600 F.2d 1295, 1297.
In 1980, the Department of Justice received limited authority from Congress in the
CRIPA statute. Defendants do not dispute that Plaintiff has standing to enforce the ADA and
IDEA in this matter, but that enforcement is limited to the statutory authority CRIPA expressly
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gave the Department of Justice. Felder v. Casey, 487 U.S. 131, 148 (1988); Monroe v. Pape, 365 U.S. 167, 172 (1961); Parratt v. Taylor, 451 U.S. 527, 535 (1981). The CRIPA statute did not create any substantive rights. It merely gave the Department of Justice the means to enforce existing federal rights. Although the Department of Justice is the Plaintiff, for evidentiary purposes, the Court cannot assume that the Plaintiff represents the interest of any CHDC resident or guardian. Id.
A. PLAINTIFF MUST PROVE THAT DEFENDANTS’ TREATING PROFESSIONALS SUBSTANTIALLY DEPARTED FROM ACCEPTED PROFESSIONAL JUDGMENT.
States are not constitutionally obligated to provide social services to their citizens. Youngberg v. Romeo, 457 U.S. 307, 317 (1982). The State of Arkansas has opted to provide such service to its citizens who have been diagnosed with a developmental disability and therefore, has an affirmative duty to protect certain rights of the individuals that it serves. Specifically, the U.S. Supreme Court has held that persons in state custody have “constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” Youngberg, 457 U.S. at 324. Courts have consistently held that “reasonable care” does not impose a constitutional standard of optimal treatment: minimal levels of care are sufficient. Id. at 323; Hanson v. Clarke County, 867 F.2d 1115, 1120 (8th Cir. 1989) (finding no constitutional right to optimal placement). In determining whether individuals’ rights have been protected, “the Constitution only requires that the courts make certain that professional judgment was in fact exercised.” United States v. Commonwealth of Pennsylvania, 902 F. Supp. 565, 582 (W.D. Pa. 1995), aff’d sub nom., U.S. v. Ridge, 96 F.3d 1436 (3d Cir. 1996). Professional judgment has undeniably been exercised by the Defendants in their provision of all services at CHDC.
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In determining what constitutes “reasonable care,” the Supreme Court in Youngberg emphasized that the State “has considerable discretion in determining the nature and scope of its responsibilities.” 457 U.S. at 317. Judicial deference must be afforded to the judgment that a qualified professional exercises: “It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Id. at 321. In fact, decisions made by such professionals are presumptively valid. Id. at 323; P.C. v. McLaughlin, 913 F.2d 1033, 1043 (2d Cir. 1990) (courts should not “ascertain whether in fact the best course of action was taken”). Anecdotal stories and isolated incidents do not rise to the level of a constitutional violation. U.S. v. Commonwealth of Pennsylvania, 902 F. Supp. at 580 (citing Shaw v. Strackhouse, 920 F.2d at 1143). Isolated instances of inadequate care, or even of negligence, do not demonstrate a constitutional violation. U.S. v. Commonwealth of Pennsylvania, 902 F. Supp. at 589 citing Society for Good Will, 737 F. 2d at 1245. Random acts or isolated incidents are insufficient to establish a pattern, practice, custom or policy. Id.; Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994).
Plaintiff offered no evidence that treatment decisions at CHDC are arbitrary or capricious, nor does Plaintiff claim that such treatment decisions were based on stereotypes of the disabled rather than an individualized inquiry into the needs of each resident at CHDC. See P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2nd Cir. 1990) (holding that the Rehab Act “does not require all handicapped persons to be provided with identical benefits,” and that the Act “did not clearly establish an obligation to meet [Plaintiff’s] particular needs vis a vis the needs of other handicapped individuals….”; See also Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983) (rejecting appellants’ argument that the state had the affirmative duty under the Rehab Act “to create less restrictive community residential settings for them,” and holding that because “there
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is no contention that these class members, because of their handicap, are being denied access to community residential living that Illinois is affording to others,” the Rehab Act “simply has no application to appellants’ claim”) (emphasis added).
In Morgan v. Rabun, the Eight Circuit considered the substantive due process rights of an involuntarily committed man who was a threat to others. Morgan v. Rabun, 128 F.3d 694, 698 (8th Cir. 1997). The Court found that “an individual’s liberty interest in avoiding forcible administration of psychotropic drugs is not unconditional. We must balance this liberty interest against the relevant state interests to determine whether Morgan’s constitutional rights were violated.” Id. at 696-97 (citing Youngberg v. Romeo, 457 U.S. 307, 320-21). The Morgan Court reasoned:
The governmental interests in running a state mental hospital are similar in material aspects to that of running a prison. Administrators have a vital interest in ensuring the safety of their staff, other patients, and of course in ensuring the patients’ own safety. Id. at 697 (citing Washington v. Harper, 494 U.S. 210, 227, (1990)). The Court reasoned further that its “role is not to determine conclusively that Morgan was indeed dangerous. Rather, we must simply make certain that Dr. Rabun exercised professional judgment in making the determination that Morgan was dangerous.” Id. at 697-98 (citing Youngberg, 457 U.S. at 321 (adopting the standard that “the Constitution only requires that the courts make certain that professional judgment in fact was exercised”). In the instant matter, the evidence does not show that professionals at CHDC have failed to exercise professional judgment, nor has the Plaintiff even alleged that professional judgment is not exercised at CHDC. Rather, Plaintiff’s consultants merely recommend different treatment.
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B. PLAINTIFF’S EXPERTS SHOULD BE ACCORDED LITTLE OR NO WEIGHT
In the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court found that the Federal Rules of Evidence preserve a “gatekeeping” role for the admission of expert scientific testimony. Daubert v. Merrell Dow Phannaceuticals, Inc., 509 U.S. 579,589 (1993). Pursuant to this standard, the Court must make a preliminary assessment “of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93. The Supreme Court has confirmed that this “basic gatekeeping obligation” applies to all expert testimony, whether scientific or otherwise. Kuhmo Tire Co., Ltd.v. Cannichael, 526 U.S. 137 (1999); See also People Who Care v. Rockford Bd. of Ed., 111 F.3d 528, 534 (7th Cir. 1997) (applying Daubert principles to testimony of social scientists).
Although the focus of the Court’s inquiry must be on principles and methodology, not on the conclusions they generate, “conclusions and methodology are not entirely distinct from each other.” Gen. elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512 (1997). Accordingly, while trained experts commonly extrapolate from existing data, a district court may conclude that “there is simply too great an analytical gap between the data and the opinion proffered.” Id. Nothing in either Daubert or the Federal Ru1es of Evidence requires the Court to admit expert testimony that is connected to the data only by the speculation of the expert. Id.
With respect to the reliability inquiry, the Daubert Court recognized a number of factors that courts should consider including: (1) whether the theory or technique can be tested; (2) whether it has been published or subjected to peer-review; (3) potential rate of error; and (4) existence of standards and controls and general acceptance of the methodology. Id. at 593-94; Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 (11th Cir. 1999). A party seeking to
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admit expert testimony must “demonstrate by a preponderance of evidence that their opinions are reliable.” Daubert, 509 U.S. at 589. Even when applied in the context of the social sciences, the Daubert test requires that the methods used to derive the expert’s opinion satisfy the standards for scientific methodology that his or her profession would require of out-of-court research. People Who Care, 111 F.3d at 528, 537 (7th Cir. 1997). The test is designed to determine whether the methods used to obtain results “are good science or pseudoscience.” Id. For example, the Court in People Who Care criticized a statistical study that purported to examine the influence of poverty on academic test scores by comparing the scores of poor white students in a school district with those of poor minority students. The Court concluded that the study failed to address variables other than poverty that might affect test scores and, in fact, did not even measure poverty; instead, merely identifying students below a poverty line. Id. at 537. Accordingly the Court found, “[a] statistical study that fails to correct for salient explanatory variables, or even to make the most elementary comparisons, has no value as causal explanation and is therefore inadmissible in federal court.” Id. at 537-38.
Plaintiff’s experts have not shown that their methodology is scientifically valid. Reliance on anecdotal case studies has been uniformly rejected by courts. See e.g. Blue Dane Simmental Corp. v. American Simmental Ass’n., 178 F.3d 1035, 1040 (8th Cir. 1999); Allison v. McGhan, 184 F.3d at 1312 (11th Cir. 1999) (reliance on anecdotal evidence is a factor that weighs against finding of reliability); Casey v. Ohio Medical Products, 877 F. Supp. 1380, 1385 (N.D. Cal. 1995) (case reports and anecdotal evidence “are not reliable scientific evidence of causation because they simply describe the reported phenomena without comparison to the rate at which the phenomena occur in the general population or in a control group”); Bushore v. Dow CorningWright Corp., 1999 WL 1116920 at 5 (M.D. Fla.) (outcome studies based on anecdotal or
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clinical data are not generally accepted in the scientific community as sufficiently reliable to determine causation).
Simply using “buzzwords” without the type of rigorous analysis of applicable professional standards, as established and followed by the relevant professional community, renders conclusions nothing more than personal opinions and, therefore, are unreliable. Viterbo v. Dow Chemical, Inc., 826 F.2d 420, 424 (5th Cir. 1987) (''without more than credentials and a subjective opinion, an expert’s testimony that ‘it is so’ is not admissible”); Navarro v. Fuji Heavy Industry, 117 F.3d 1027, 1031 (7th Cir. 1997), cert. denied, 522 U.S. 1015 (1997) (a conclusion without support is not one based on expert knowledge and entitled to the dignity of evidence). An expert must “show how his conclusion is grounded in – follows from – an expert study of the problem.” Id. at 1032; Cartwright v. Home Depot U.S.A., Inc., 936 F. Supp. 900,905 (M.D. Fla. 1996) (“even experts must show that they used science and not speculation to come to their conclusions”).
Dolihite is an instructive case in this regard. Dolihite v. Maughon by and through Videon, 74 F.3d 1027 (11th Cir.), cert. denied, 519 U.S. 870 (1996). That matter involved a federal civil rights lawsuit against a state hospital’s personnel on behalf of an adolescent who suffered injuries when he tried to hang himself. Summary judgment was granted for defendants on the grounds of qualified immunity. On appeal, the relevant question was whether defendants had “violated clearly established constitutional law” by being “deliberately indifferent to [the patient’s] serious medical needs” so as to provide an exception to the qualified immunity doctrine. Id. at 1041. The plaintiffs argued that the Court erred in failing to consider the affidavit of their expert witness, a certified and practicing psychologist, that defendant’s treatment was “a total departure from professional judgment, practice or standards” such that it could not be said
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that treatment was based on accepted professional judgment. Id. at 1046. The Circuit observed that expert medical testimony could be helpful in establishing a sufficiently great departure from the relevant professional standards if the testimony made reference to “specific deficiencies in defendant’s treatment and specific medically accepted standards.” Id. However, in applying this standard, the Court found the expert’s affidavit had several flaws that rendered it unhelpful. Although plaintiffs’ expert referred to several specific instances which he believed indicated a need for more intensive intervention, he failed to cite any authority for his “conc1usory suggestion” that defendants’ conduct was a departure from accepted professional standards. Id. at 1047. The Court continued:
This is not to say that Dr. Halpern’s conclusions are wrong. Rather it is to say that his affidavit does not aid us in our … analysis. His affidavit is not the kind of tool which indicates with any specificity the degree to which the doctor here strayed from the realm of accepted professional judgment. The fact that Dr. Halpern used the phrase ‘total departure from professional judgment, practice or standard... ’ does not foreclose summary judgment when qualified immunity has been properly raised. The affidavit must help the court to discern whether the purported departure was so egregious that, in light of the reported cases, a reasonable professional would have recognized that his behavior amounted to a constitutional violation. Id. As the Dolihite Court concluded, “an expert opinion which is merely conclusory, even if couched in the language of the relevant legal standard, will be of little assistance to a Court.” Id. at 1046, n.3. In the instant matter, Plaintiff’s experts have not shown that their methodology is scientifically valid. There is too great an analytical gap between the limited data collected and the conclusory opinions of Plaintiff’s experts. Their haphazard selection of a sample is not a
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technique that can be tested. Their methodologies have not been published or subjected to peer-
review. The rates of error from their flawed samples are much too high.
Defendants’ expert, Dr. Walsh, explained the importance of having a randomized
stratified representative sample of people to establish a subpopulation so that the results of a
review are truly representative of the care at the facility. Tr. at 5804, 5806 (Walsh). Unlike
Plaintiff’s experts, Defendants’ experts were careful to select random, stratified, representative
sample for their respective reviews of CHDC.
Dr. Kastner found that the Plaintiff’s experts did not rely on a random stratified sample.
Tr. at 4045. (Kastner).
Generally they chose samples which were based on the outcomes that they wanted to look at. So Dr. Mikkelsen looked at everybody who died. He looked at predominantly people who used more medication, who were sicker, who were older. Dr. Holloway looked at patients who were younger, who took more psychotropic medications, who had more challenging behavior. I didn't see any of them characterizing a pattern of care based upon an appropriate sample, representative sample, a sample that would allow them to generalize their opinions from their sample to the entire facility.
Tr. at 4045 (Kastner).
And what I found consistently, at least in Dr. Holloway and Mikkelsen and Ms. Crawford, were they cited care episodes for specific individuals. There was no evidence to support the fact that those citations of a specific care practice were representative of the care at the facility.
Tr. at 4047 (Kastner).
Dr. Kastner expressed a concern with Plaintiff’s experts:
It’s not simply an expert walks in, says either you do what I do or you are deficient, I resent the fact that many of the plaintiff’s experts took that approach in reviewing care processes at CHDC.
Tr. 4026 (Kastner).
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Furthermore, the Plaintiff’s experts could only offer about five (5) benchmarks and they
could not present them in an appropriate manner. Tr. at 3981 (Kastner). If they had
appropriately used benchmarks, they would have found out that Conway compared very
favorable and was superior many aspects to other ICF’s. Tr. at 3981 (Kastner).
As to Mikkelsen’s sample, Dr. Kastner observed:
Well, it’s absolutely false that those cases represent that typical care at the facility.
Tr. at 4003 (Kastner). As stated by Dr. Kastner:
Dr. Mikkelsen testified about his representative cases and their typicality. His report actually had seven. He only testified about six. And he needed just a couple more to make his point. And he apparently couldn't find typical cases in the remaining 72 individuals in his quote, unquote, sample and had to go outside of his sample to find two others whose charts he had never seen prior to -- I mean, never seen prior to writing his report or prior to his deposition, to somehow make the case that two more people needed to be added to a sample to identify representative care practices. That's patently absurd. If his sample of 78 were representative and if his point in presenting case examples are to represent the typical quality of care, he should have been able to find one or two in the remaining 72 cases in his sample. To be forced to go outside and find two more because they were more typical than the ones in his sample really reflects very poorly on the sampling procedure and its representativeness.
Tr. at 4004 (Kastner).
Dr. Mikkelsen’s sampling methodology was not sufficient to identify a sample that was
representative of CHDC. Tr. at 4110 (Kastner). Dr. Kastner further observed:
So this was – the whole process was very troubling. There was no standard produced. There was no measure that was utilized. There was no pattern that was described. There were simply a handful of cases that were thrown into the report at the end – seven actually, to quote –unquote, illustrate to poor patterns of care.
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Tr. at 4112 (Kastner). Mikkelsen’s sample of seven cases was not representative of the typical psychotropic practices at CHDC. Tr. at 4153, 4155 (Kastner).
Plaintiff’s expert, Ms. Osgood repeatedly admitted that she did no randomized sample and only reviewed documents that were sent to her by DOJ. Tr. at 214-20 (Osgood). Ms. Osgood’s ongoing disregard for any methodical process was demonstrated by her willingness to testify that a document that she reviewed only one day before her testimony was somehow representative of CHDC facility-wide. Tr. at 99-100 (Osgood). Plaintiff’s expert, Ms. Osgood clearly intended to present biased findings to the Court and failed to use any methodology of statistical extraction of injuries at CHDC. Tr. at 5964 (Walsh). Ms. Osgood did no calculations of the frequency of injuries at CHDC such as how many injuries occur per person, per day or per year. Tr. at 248 (Osgood). She did not objectively assess any discipline or information at CHDC. Tr. at 5977 (Walsh). Ms. Osgood’s, opinions were idiosyncratic, personal opinions with no scientific basis. Tr. at 5977 (Walsh).
Plaintiff expert, Ms. Crawford, used the same report in this matter that she used in previous investigations of facilities in other states and admitted that at least some of the material, including another facility’s name, appeared throughout her report that she supposedly prepared for this matter. Tr. at 2904 (Crawford). Also, Ms. Crawford’s methodology was seriously flawed. She commented on staff training but did not observe staff or interview any staff to determine what level of training or knowledge they had. Tr. at 2907 (Crawford). She also failed to use any benchmarks in her review. Tr. at 2907-08 (Crawford). Even more troubling, she conducted her reviews by interacting with the residents she claimed she was observing, which necessarily altered the representativeness of her observations. Tr. at 2931 (Crawford).
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Similarly, Plaintiff’s expert, Dr. Matson’s report would not stand up to the scrutiny of his own profession. Tr. at 5893 (Walsh). Dr. Matson showed no intent to be objective in his review of CHDC. Tr. at 5893 (Walsh). He did not review a random, stratified, representative sample of CHDC residents. Tr. at 5894 (Walsh). He did not even finish reviewing the records that he requested and were provided by CHDC. Tr. at 5894 (Walsh). At trial, Dr. Matson admitted that he did not even believe that he drew a representative sample of CHDC residents for his review. Tr. at 1206-09 (Matson). Dr. Manikam also admitted that he did not take a randomized stratified representative sample. Tr. at 3172 (Manikam).
Dr. Matson can not make statements about the entire CHDC population because he did not take any sort of reasonable scientific approach in his work. Tr. at 5902 (Walsh). Dr. Matson’s sample was not representative of CHDC with respect to gender, clinical team membership, level of intellectual disability, ambulation status, fragile health, aggressive, destructive, or self-injurious behaviors in behavior plans. Tr. at 5895 (Walsh). In some instances, Dr. Matson’s sample was nearly the reverse of the actual CHDC population. Tr. at 5895 (Walsh). Dr. Matson oversampled people with severe behavioral problems and severe disabilities, but under sampled residents with profound disabilities. Tr. at 5895 (Walsh). As further evidence of his sloppy research, in one of Dr. Matson’s charts he identified one of CHDC’s psychological examiners as one of the residents, leading one to lack confidence in Dr. Matson’s analysis. Tr. at 5897 (Walsh). In another of Dr. Matson’s charts he incorrectly identified the first names of at least six or seven CHDC residents, further leading one to lack confidence in Dr. Matson’s analysis. Tr. at 5898 (Walsh). Dr. Matson claimed to not know whether there were incorrect name transcriptions on his list, although that fact was noted in
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Defendants’ expert report months before trial. Tr. at 1206-1209 (Matson). At a minimum, Dr. Matson’s, lack of methodology affected his findings. Tr. at 5902 (Walsh).
Dr. Mikkelsen did not conduct a psychiatric assessment of any individual at CHDC. Tr. at 3831 (Mikkelsen). He admitted that his methodology was not consistent with the CMS surveyors’ methodology. Tr. at 3789 (Mikkelsen). He testified that he selected 76 charts review “drawn from low utilizes of medications, high utilizes of medications, and then some based on the diagnostic constellation that was listed on the face sheet, probably leading more toward complex diagnostic formulations.” Tr. at 3790, 3791 (Mikkelsen). Dr. Mikkelsen’s sample ended up being a sample of 78 out of 500 individuals from which seven were selected to discuss at trial. Tr. at 4003 (Kastner). Those seven cases are the outliers in the sample of 78, and the 78 are the outliers of the population of 509. Tr. at 4003 (Kastner). The examples Dr. Mikkelsen ended up with were younger residents who took more medication than the average resident at CHDC. Tr. at 3788, 3789 (Mikkelsen). The sample Dr. Mikkelsen ended up with also included individuals who had more adverse outcomes than the average individual at CHDC. Tr. at 3789 (Mikkelsen). Dr. Mikkelsen’s sample was not representative of CHDC. Tr. at 3790 (Mikkelsen).
Dr. Mikkelsen did not observe CHDC residents in any proportions to the overall general population, such as by disability or intellectual level. Tr. at 3787 (Mikkelsen). He was provided a spreadsheet of individuals on psychotropic drugs at CHDC by the DOJ that he had not requested. Tr. at 3786 (Mikkelsen). Prior to his tour of CHDC, Dr. Mikkelsen received documents from the DOJ, selected by the DOJ. Tr. at 3786, 3787 (Mikkelsen). There was at least one individual whom Dr. Mikkelsen reviewed solely because other DOJ consultants asked him to do so. Tr. at 3788 (Mikkelsen).
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Dr. Holloway only referred to four (4) examples to support her testimony. Tr. at 4214
(Kastner). The sample referred to by Holloway was not representative of the overall population
at CHDC. Tr. at 4215.
Dr. Kastner further noted:
Again, I didn't see that plaintiff's experts articulated a standard of care. Because they didn't articulate a standard of care, I couldn't understand the basis for their allegations that there were any deficiencies related to care process. And as a result, I don't understand the basis for any remediation or relief that would be justified. I think it's important that -- you can't start this process and reach a conclusion without articulating what the standards are at the very beginning. And, again, I don't believe that the care practices are deficient, not just because the DOJ's experts were unable to articulate any standards, but because I believe there is fundamentally a problem with the quality of evidence used to justify care practices. And because there is a lack of adequate evidence, we have to afford clinical professionals the opportunity to use their judgment and operate on good faith to provide the services as best they see fit.
Tr. at 4076 (Kastner).
Dr. Kastner noted that there cannot be a violation of accepted professional standards
without an established practice. Tr. at 3991 (Kastner).
Again, as I have looked at the plaintiff’s experts’ reports and listened to their testimony, I keep waiting to hear what is the standard of practice so that we can compare practice at CHDC against that standard. . . And I just really haven’t heard a clear articulation of the quote, unquote, standard of care.
Tr. at 3991 (Kastner).
Plaintiff’s experts do not cite any standards or controls to demonstrate general acceptance
of their methodologies. The Court is presented with personal opinions, not scientific analysis
from Plaintiff’s experts. As in Dolihite, the DOJ experts have failed to cite any authority for
their conclusory suggestions that professional services at CHDC substantially depart from
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accepted professional standards. Plaintiff’s experts in many instances acknowledged that the ICF/MR regulations represent the standard of care. Dr. Mikkelsen, Ms. Richardson, and Ms. Osgood, to an extent, all relied upon elements of the ICF standards to make the case when it was convenient for them to claim that the facility did not meet standards. There is implicit acknowledgment in their reports and testimony that the ICF/MR standards are applicable in both defining the model of care and evaluating its quality. Richardson testified that the DDS mission statement was the standard by which she followed to evaluate CHDC. Tr. at 675-76 (Richardson). She further admitted that even though a mission statement is only a statement of what the facility wishes to strive for, she still applied that standard to what she thought were constitutional violations at CHDC. Tr. at 676 (Richardson). Likewise, Osgood also lacked any standards by which she evaluated CHDC. Tr. at 209, 222 (Osgood). Crawford also admitted that she did not apply any standards to her review of CHDC. Tr. at 2915 (Crawford).
“[W]here an expert becomes an advocate for a cause, he therefore departs from the ranks of an objective expert witness, and any resulting testimony would be unfairly prejudicial and misleading.” Viterbo v. Dow Chemical Co., 646 F. Supp. 1420 (E.D. Tex. 1986) (toxic tort expert sought employment from plaintiff's attorneys and did not view the condition objectively). A number of Plaintiff’s experts are undeniably advocates for a social or political philosophy. Plaintiff’s advocates could not have objectively evaluated professional services at CHDC. The opinions of those witnesses must be significantly discounted. “[A] scientist who forms an opinion before beginning his research lacks the objectivity needed to produce reliable scientific results.” Id. at 1425 (citing Perry v. United States, 755 F.2d 888 (11th Cir. 1985). Plaintiff’s expert Ms. Richardson was an advocate for a cause to move individuals from state run facilities to waiver-funded programs. She made idiosyncratic conclusions with absolutely no basis, and
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used absolutely no standards and made no mention of an appropriate clinical process for evaluating the risk of harm. Tr. at 4341-45 (Kastner). Her findings do not withstand scrutiny as she has been discredited by Dr. Walsh and Dr. Kastner. Tr. at 5984, 4002, 4009 (Walsh, Kastner).
Susan Thibadeau was also clearly an advocate for a cause in that she made recommendations for certain students at CHDC who she thought should be receiving their education in another setting, but made no attempt to observe their IEP meetings or interview their team members to determine why those students are receiving services at CHDC. Tr. at 2380 (Thibadeau). Thus, she could not definitively say how exactly she thought she could make that determination. She was clearly an advocate of moving children out of the facility with no regard to what was in the best interest of the individual children she mentioned. Tr. at 2369 (Thibadeau).
The trial evidence reflected that nearly all of the DOJ experts toured CHDC with a preconceived notion of what their findings would be even before they conducted their tours. This bias was evident through testimony by Richardson who admitted that she used no standards in reaching her findings. Tr. at 676 (Richardson). It is also clear that Osgood and Thibadeau had no valid or reliable samples of individuals and admitted that DOJ provided them with the documents they reviewed. Tr. at 214 (Osgood). The evidence shows that Dr. Matson and Dr. Mikkelsen based their findings on samples which were not scientifically reliable and not stratified or representative. The DOJ experts conducted incomplete reviews, cut and pasted their reports, and relied on isolated incidents provided to them by DOJ attorneys rather than creating their own findings. Tr. at 1201, 2904, 2361-62 (Matson, Crawford, Thibadeau). These experts
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lacked the objectivity necessary to assure reliable scientific results and this Court should afford their opinions little to no weight.
IV. THE DOJ HAS FAILED TO PROVE A PATTERN OR PRACTICE OF ABUSE AND NEGLECT AT CHDC AND THEREFORE FAILS TO MEET THEIR BURDEN OF PROOF UNDER CRIPA There is no policy or custom implemented at CHDC which would result in the abuse or
neglect of a client at CHDC and the DOJ has failed to provide the Court with any proof of any pattern or practice that would result in abuse. “Isolated examples of problems, while regrettable, do not establish constitutional violations.” Shaw v. Stackhouse, 920 F. 2d 1135, 1141-42 (3d Cir. 1990). “Although the failure to prevent a pattern of attacks, injuries, or violent behavior is actionable, the right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer.” Id. at 1143. See also, Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245 (C.A.N.Y.,1984) “[T]he Justice Department must prove that the government entity's ‘policy or custom’ was a ‘moving force’ behind and ‘played a part in’ the alleged deprivations.” United States v. Commonwealth of Pennsylvania, 902 F. Supp. 565 (W.D. Pa. 1995). In U.S. v. Pennsylvania, the court evaluated the case presented by the United States against the Ebensburg Center, an ICF/MR facility, and made specific inquiries into whether any of the instances cited by the United States would prove a pattern or practice of the facility. The court found that the incidents cited by the United States were isolated incidents over the course of several years and did not prove that there was any pattern or practice at the Ebensburg facility that played any role in the alleged deprivation of care. Like the Ebensburg case, the DOJ in the present case has created an identical argument against CHDC. By relying on isolated incidents and by failing to provide the Court with proof
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that there is a policy at CHDC that is the moving force behind any of the instances cited, the DOJ has failed to meet its burden of proof. Much to the contrary, CHDC is a well-staffed facility that has systems in place to address client maltreatment, client to client aggression and program planning.
DOJ presented only one expert on this issue, Carla Jo Osgood. Not counting the DHS and DDS policies, there are 425 procedures and policies identified in the CHDC policy manual. Tr. at 5966 (Walsh). Ms. Osgood alleged that harm occurs at CHDC as a result of a lack of formalized policies and procedures, but such an allegation is completely baseless. The very few numbers of injuries identified by Ms. Osgood over a two and half year period at a facility with over 500 residents actually demonstrates that CHDC is a very safe facility. Tr. at 5971(Walsh).
In the case at hand, the DOJ has not even attempted to establish that there is a policy or custom that is implemented at CHDC that would result in the abuse or neglect of the residents. The DOJ’s primary witness with regard to maltreatment and injuries at CHDC was Ms. Osgood. Not only did Ms. Osgood fail to prove any constitutional violations, but the fact that she had to search a period of two and a half years to find just twelve instances of injuries that she claims are associated with a common theme, that being wheelchairs, in itself demonstrates that there is no pattern or custom at CHDC that would cause abuse or neglect. Tr. at 5962-63 (Walsh).
Ms. Osgood did not objectively assess any discipline or information at CHDC. Tr. at 5977 (Walsh). Osgood’s, opinions were idiosyncratic, personal opinions with no scientific basis. Tr. at 5977 (Walsh). And she did no calculations of the frequency of injuries at CHDC such as how many injuries occur per person, per day or per year. Tr. at 248 (Osgood).
The ICF/MR guidelines are minimal professional standards that CHDC must meet, and CHDC does meet those standards. Tr. at 5977 (Walsh). The purpose of the ICF/MR standards is
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to ensure client safety. CHDC makes every possible effort to protect its residents from harm.
Dr. Kastner testified as to this issue at trial.
I will say that the facility does take any negative outcome, including any injury or accident, extremely seriously. And I know that [DOJ presented] many exhibits that reflected investigation reports and things of that type. I think that the effort there was designed to embarrass the facility by the presence of those investigations, implying that there were links that could be established between poor care practices and those outcomes. What I would say is that the facility operates in a very transparent fashion. Its doors are open. Its books are open. It is very selfcritical, and it is very self-analytic, that it collects information, and it airs it publicly across the facility with the goal of improving care. There's no one trying to hide anything at that facility. They investigate almost everything that they can think of, and certainly anything that would potentially have been attributed to poor care or to abuse or neglect. They have a very high sensitivity for the health and safety of the residents. And it would be improper, and I think it actually was improper, to represent that that process of openness and self-criticism at all represents inferior care or a pattern of inferior care.
Tr. at 4299 (Kastner).
As noted above, in determining whether a constitutional violation has occurred, courts
require a showing of something that amounts to more than just isolated incidents. They also
have required proof of a custom or practice at a facility that was a moving force behind the
allegations of abuse or mistreatment of residents. The DOJ has failed to show a pattern of abuse
and neglect and has failed to show that there is any custom or practice at CHDC that would have
been a moving force behind any incidents of abuse. They therefore have failed to meet the
burdens imposed by the Courts in Shaw, Societies of Good Will and Ebensburg.
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A. THE INCIDENT REVIEW COMMITTEE IS ACTIVE AT CHDC AND EVALUATES CLIENT TO CLIENT AGGRESSION IN ORDER TO IDENTIFY TRENDS AND PATTERNS AND TO APPROPRIATELY ADDRESS CLIENT-TO-CLIENT AGGRESSION AND INJURY
The DOJ failed to prove that client-to-client aggression has either individually or in total risen to the level of a constitutional violation, much less that the official policy or custom at CHDC played any role in any alleged deprivation of care.
Many of the incidents which the DOJ presented to this court at trial involved client-toclient aggression. DOJ attempted to call into question the functionality and effectiveness of the Incident Review Committee (IRC) at CHDC.
Each of the five teams has an IRC, and each day the IRC meets, reviews incidents and makes recommendations for a team leader to do an Administrative Review of certain cases. If a recommendation is made, the team leader will review the incident and see if there is anything they can add to the resolution of the incident or to the prevention of like occurrences. Tr. at 31314 (Weaver). Sometimes the team leader will refer it back to the IRC to take a second look at the incident because IRC may identify something that was not flagged during the first review. Tr. at 456 (Murphy).
When CHDC finds that there are a series of incidents for a particular resident in a relatively short period of time, a special staffing is held to revise the individual’s IPP where appropriate. Tr. at 457, 4866 (Murphy). CHDC is able to track when a particular resident is having an increased amount of behaviors through the behavior reporting process and the Monthly Behavior Report and Safety Plan Use document that is generated by the psychology department. Tr. at 461 (Murphy).
In addition to the behavior report process, CHDC administrator, Sara Murphy testified that she will review all incidents reviewed by the IRC teams as well and she will plot all
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incidents into a composite table which shows how many incidents any individuals have had. Tr. at 462 (Murphy). This shows that CHDC has a policy and custom in place to track and trend client-to-client aggression in order to reduce incidents of aggression between clients. Ms. Murphy sends her findings to the team leaders and team IRC’s in order to show them any patterns that they may not have realized from their daily reviews. Tr. at 462 (Murphy). This is evidence that the client-to-client aggression is not due to any policy or custom at CHDC and that CHDC is doing everything possible to keep these incidents from occurring.
DOJ attempted to show that the policies at CHDC are deficient by introducing Exhibits 377, 378, 379, 380 and 382 which were all administrative reviews regarding C.A. and client-toclient aggression in which he was involved. However, in response, Defendants introduced a special staffing which was scheduled and held for C.A. in response to these incidents of increased aggression. Tr. at 4865-66 (Murphy); Def. Ex. SM-1. Defendants produced proof that systems are in place at CHDC to prevent and reduce client-to-client aggression. DOJ could not find even one instance where there was a pattern of client aggression which went unnoticed or unaddressed at CHDC. Therefore, it is reasonable for this Court to conclude that the custom at CHDC is to track incidents of harm and to address them appropriately through special staffing’s and through changes in programs. It is further reasonable for this Court to also conclude that the customs and practices at CHDC are not a moving force behind client-to-client aggression and that CHDC appropriately addresses any aggressive conduct and make changes in an effort to reduce any inappropriate behavior.
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B. CHDC APPROPRIATELY ADDRESSES FRACTURES AND HAS NECESSARY PROGRAMS TO PREVENT FALLS AND BONE INJURY
The average rate of injuries and fracture at CHDC is low relative to benchmarks from other similar facilities. Tr. at 4065, 4296-4297, 5941 (Kastner, Walsh). In fact, the rate of fractures and other injuries at CHDC is virtually the same or lower than the rate at similar facilities. Tr. at 5955, 5941 (Walsh).
CHDC pays special attention to the risk of fractures for its residents. To prevent fractures from occurring, CHDC has a DEXA scan machine on campus which tests the bone density of its residents. Tr. at 6403 (Henderson). DEXA stands for dual energy x-ray absorption meter.” Tr. at 6403 (Henderson). The DEXA scan has a minimum amount of x-ray. It produces an immediate picture. The computer component of the scan analyzes risk factors. It analyzes lumbar 1 through 4 and bone mineral density and contents in the area. Tr. at 6403, 6404 (Henderson). The DEXA scan compares the individual’s results with that of what you would expect to see at peak bone age and similarly for the hip and formulates the risk. The machine considers age, sex, ethnicity, height, weight, menopause. The results are categorized by the machine as not at risk, increased risk, or high risk. Tr. at 6404 (Henderson). The DEXA scan shows much detail, it can show the spaces and gaps in the bone. Tr. at 6405(Henderson). The DEXA scan even shows subtle changes in bone density over the years. Tr. at 6405, 6406 (Henderson). Dr. Kemp, CHDC’s endocrinologist, rates the DEXA scan results and makes any determinations of osteoporosis or osteopenia. Tr. at 6405 (Henderson). Dr. Kemp is a consultant endocrinologist from UAMS. Tr. at 6438 (Henderson). CHDC has a contract with Dr. Kemp to provide services at CHDC on a regular basis. Tr. at 6438 (Henderson).
Residents at CHDC receive DEXA scans every two years. A urine test called Ntelopeptide is utilized when the DEXA is unable to read an individual’s bones due to
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abnormalities. Other testing includes endocrine, Vitamin D, and calcium. Treatment includes Vitamin D with calcium; bisphosphonates such as Boniva or Fosa max; bone therapy such as Evista for females. Miacalcin is used for those who may not tolerate bisphosphonates. Reclast, a yearly bisphosphonate, and Forteo, a bone builder, are also sometimes used. Tr. at 6406-6408 (Henderson). The endocrinologist, the primary care physician, and the IDT reviews the DEXA results. Tr. at 6406 (Henderson).
CHDC started using the DEXA machine in 2006. They started using the actual risk factors from the machine in 2008. Tr. at 6406 (Henderson). The DEXA risk results are documented on the resident’s Quick Reference Guide. Tr. at 6406 (Henderson). Staff is made aware of an individual’s risk of fracture by looking at the QRGs, attending Phase II training, and visiting the DEXA building. Tr. at 6410 (Henderson).
Low bone density is identified and treated in a variety of ways. In 2005-2007, CHDC implemented a comprehensive risk assessment. Individuals with a DEXA score within the normal limits may nonetheless be indicated as having an increased fracture risk. Tr. at 6408 (Henderson).
If someone is indicated by the DEXA to have a higher risk factor for fractures, their bone density will routinely be measured every two years by the DEXA and they will be prescribed medication. The team will also address their staffing in their plans. If additional fractures occur, the physicians will perform a peer review at a physicians’ meeting. Tr. at 6411(Henderson). The DEXA scan has many benefits to the residents at CHDC. 1
1 For example, resident HCT has a DEXA score within the normal limits. However, she is indicated as having an increased fracture risk. CHDC ensures that HCT receives Boniva, Evista, and has had consults with an endocrinologist. Tr. at 6434 (Henderson).
In 2008, she had a plus one on her spine, and her risk factor, according to the machine, on her spine would not be increased. Her hip was minus 2.2, which would be osteopenia, which there was an increased result in her - - would cause an increase in her fracture risk. In 2007, her number was .3. There was no increase
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At CHDC, Ms. Henderson is responsible for conducting clinical audits of any individual who develops a fracture. Ms. Henderson, a nurse, audits their medical records, history of any fractures, DEXA results, any interventions, any medications related to osteoporosis, adequacy calcium, adequacy of Vitamin D, any back pain, and any loss of height or kyphosis. Such evaluation is documented in a progress note and sent to the physician. The physician will make a determination regarding any additional interventions. Tr. at 6410 (Henderson).
CHDC tracks injuries in the IRIS database. The IRIS database, which is the DHS Incident Reporting Information System, helps CHDC to keep track of injuries that occur. CHDC generates a monthly activity report and a quarterly and yearly statistical report from the IRIS database that CHDC regularly sends to the Department of Developmental Disabilities. Tr. at 4982 (Miller). Defendants’ expert Dr. Walsh analyzed the IRIS database to obtain statistics of injuries at CHDC. All cuts and lacerations are reported in the IRIS database if they require stitches, dermabond, or steri-strips to close. Tr. at 5938 (Walsh). All fractures are reported in the IRIS database. Tr. at 5938 (Walsh). Swelling, sprains, and bruises are reported in the IRIS database if an x-ray was ordered, regardless of whether underlying damage is found, but if a fracture is found the injury is recategorized to the fracture category. Tr. at 5938 (Walsh). Clientto-client bites are reported in the IRIS database if the skin is broken or if antibiotic is applied. Tr. at 5938 (Walsh). Abrasions and burns are reported in the IRIS database if they require the application of medications or ointment. Tr. at 5938 (Walsh). Medication errors are reported in
because that would be within the normal limit. And then he r hip was minus 2.1, which would be an increase. Tr. at 6408, 6409 (Henderson).
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the IRIS database if they are serious in nature and require some type of medical treatment to correct. Tr. at 5939 (Walsh).
Professional standards unequivocally dictate that minor injuries, including bumps and bruises (any less than 2 inches), are not to be tracked or recorded because including such injuries would skew data. Tr. at 5938 (Walsh). That is not to say that CHDC does not record such injuries. In fact, parents and guardians are notified of even minor incidents and injuries. Tr. at 5034 (Miller), 5059 (Taylor). Parents and guardians testified that the reason they chose CHDC for their loved ones is because CHDC protects the residents from unnecessary injury. In fact, Barry Landen, the brother of K.L. testified that K has lived at CHDC for 40 years with no serious injuries. Tr. at 6851.2
DOJ experts Ms. Osgood and Ms. Crawford both commented on fractures and other injuries occurring at CHDC. Neither expert provided the Court with any benchmarks or any comparative data from other facilities with which to compare CHDC. Tr. at 2923 (Walsh). Defendants’ expert Dr. Walsh, on the other hand, did provide information to that effect. Kevin Walsh analyzed the injuries reviewed by the IRC and contained on the IRIS database at CHDC. Tr. at 5937 (Walsh). Dr. Walsh analyzed six consecutive quarterly reports beginning with the first quarter of 2008. Tr. at 5939 (Walsh). The quarterly injury data analyzed by Dr. Walsh included information about the time, place, and type of injury. Tr. at 5939 (Walsh). Dr. Walsh organized the injury data by cuts, fractures, bruises, bites, swelling, abrasions, choking, burns and other. Tr. at 5939 (Walsh). From that data that Dr. Walsh was able to access from the IRIS database, he calculated an annualized total and per-person, per-year rate of injury, which is the
2 “For example, if [K.]were to pick up a knife, a sharp knife, he would cut himself to shreds with it before he figured out that something bad was happening and the knife caused it. He's prone to slam doors, but he doesn't understand the concept of putting your fingers over the door when you slam will cause you a huge amount of injury. So the fact that nothing serious has happened to K in 40 years of living there [CHDC] is extraordinarily significant to me.” Tr. at 6851 (Landen).
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standardized rate that is used in academic peer-reviewed literature. Tr. at 5940 (Walsh). According to the data collected by Dr. Walsh, there are 0.16 cuts per person per year at CHDC. Tr. at 5940 (Walsh). There are 0.06 fractures per person per year at CHDC. Tr. at 5942. There are 0.02 bites per person per year at CHDC. Tr. at 5942 (Walsh). There are 0.03 abrasions per person per year at CHDC. Tr. at 5942. There are 0.00 choking incidents per person per year at CHDC. Tr. at 5942 (Walsh). There are 0.00 burns per person per year at CHDC. Tr. at 5942 (Walsh). There are 0.05 other types of injuries per person per year at CHDC. Tr. at 5942 (Walsh). The per person, per year rate for all injuries at CHDC is 0.41, which is less than the rate of injuries of published studies with large samples from multiple states. Tr. at 5941 (Walsh). The per-person, per-year rate for all injuries at CHDC is comparable to benchmark rates at other facilities. Tr. at 5941(Walsh). Given the population at CHDC the rate of injury is no higher than one would expect in similar a facility. Tr. at 5941 (Walsh).
Injuries and Incidents at CHDC are not occurring at a high rate and certainly not occurring at a rate which would rise to a constitutional violation on the part of CHDC. CHDC has systems in place to report injuries and prevent injuries from reoccurring, fractures in particular. CHDC is meeting and exceeding professional standards by utilizing the DEXA machine and reporting all injuries through the IRIS database; generating reports for review by the Department of Developmental Disabilities and reporting any injuries to parents and guardians of the residents. The DOJ has not met its burden in proving that CHDC is failing to meet professional standards with regard to fractures or other injuries and has failed to provide any comparative data to show that CHDC is falling below generally acceptable professional standards. To the contrary, Defendants showed that CHDC has low rates of injury, comparable
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to other similar facilities and guardians are choosing placement at CHDC for their loved ones based on these results.
C. INDIVIDUAL PROGRAMMING PLANNING IS APPROPRIATE AND EFFECTIVE AT CHDC
In an effort to discredit the programming at CHDC, DOJ selected certain parts of the process that when taken individually appear not to provide appropriate services, but, when taken in their entirety, are actually very reasonable approaches consistent with generally accepted professional standards. An example of this disingenuous attempt to cast a shadow on the care provided at CHDC is where the DOJ questioned Judy Weaver, a program coordinator, on resident J.M.
The DOJ had a monthly plan review that did not list out the number of times he was restrained in that month and it discussed whether he could match numbers. Judy Weaver explained that monthly plan reports are summaries of how the individual is progressing with his service objectives and not with his behavioral objectives. Behavioral incidents requiring restraints are dealt with through behavioral objectives and when behavioral objectives need to be adjusted, it is handled by another mechanism at CHDC which allows the entire team to be involved. Tr. at 349-50 (Weaver). The number matching had significance with regard to T.M.’s service objectives only.
DOJ elicited testimony from Judy Weaver about resident M.E. who had smearing of feces as a target behavior in his plan. DOJ pointed to M.E. engaging in this behavior and asked Judy Weaver why his toileting objective was not changed. Tr. at 366 (Weaver). This is particularly telling as to the DOJ’s lack of knowledge, in that it shows that the DOJ was unaware that smearing has nothing to do with toileting skills. It is absurd to think that an individual, even
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with significant disabilities, would engage in smearing because their toileting skills were not refined. Judy Weaver testified that the smearing would be contained in M.E.’s safety plan since it is a behavioral concern. Tr. at 367 (Weaver). The DOJ went on to pull out other documents at CHDC, including a behavioral report for M.E., but quickly redirected the-ir questioning once Judy Weaver began to explain to the Court that the behavioral reports are addressed in the Safety Plans and Positive Behavior Support Plans at CHDC, not the program director’s monthly summary reports. Tr. at 372 (Weaver). The program director only focuses on services objectives, not behavioral objectives. The DOJ was confused about the inner workings of the facility and inappropriately addressed only isolated portions of the system to imply that M.E.’s smearing went unnoticed and unaddressed when it certainly did not.
DOJ then went on to ask Ms. Weaver to explain why the “significant needs” listed in M.E.’s IPP included “matching gardening tools.” Tr. at 388 (Weaver). Ms. Weaver explained that M.E. was assessed and his significant needs came from the assessments which determine his likes, dislikes, strengths, needs and preferences. Tr. at 388 (Weaver). In this case, matching gardening tools could very well be a significant need for M.E. The DOJ did not introduce evidence to the contrary and did not meet its burden of proving that matching gardening tools was not a significant need for M.E. or that M.E.’s IPP was incorrect or inappropriate in any way. If M.E. enjoys engaging in gardening and gardening keeps him engaged, which may have been a way to reduce his behavior of smearing. Without showing that M.E.’s smearing was not addressed anywhere else in his plan, including his safety plan or positive behavior support plan, the DOJ has failed to meet their burden of showing that systems at CHDC lead to client injury or risk of harm. Likewise, without showing that M.E. does not enjoy gardening and that gardening
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does not help to engage M.E. in meaningful activity, DOJ has again failed to show that CHDC is not providing appropriate care to M.E.
DOJ also questioned Ms. Weaver on the long range goals of Z.S. Z.S.’s long range goals come from his likes, dislikes and preferences, and in his case, they are appropriate. Tr. at 393 (Weaver). Identifying coins totaling a dollar is a significant need for Z.S. because it has allowed him to go to the canteen by himself and exhibit independence. Tr. at 396 (Weaver). Z.S.’s long range goals state: “By 2012 I will learn appropriate behaviors in order to function more independently in my environment at CHDC and home visits.” Tr. at 399 (Weaver); Pl. Ex. JW3. Home visits are mentioned in his long range goals because the Center is referencing his home visits with his family. Clearly, CHDC has the long range goals geared toward Z.S. eventually functioning more independently at home so that he might move back home to live with his family. Z.S. is only eleven (11) years old and if he were to move from CHDC it would most likely be back to his home. Therefore, it is more than appropriate to mention home visits in Z.S.’s long range goal section.
Program planning at CHDC is appropriate and effective, and the DOJ has not proven otherwise. It is clear from the evidence that the DOJ did not understand how the facility works and mistakenly claimed that there are incidents of adverse behavior that were overlooked and plans that were inappropriate. To the contrary, individual program plans are appropriate and do not result in injury to the residents. Safety Plans and Positive Behavior Support Plans are also appropriate and help in the effort to reduce incidents of injury and risk of harm.3
3 Safety Plans and Positive Behavior Support Plans are discussed in more detail later in Defendants’ Post-Trial Brief under the Psychology section.
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D. CHDC HAS AN APPROPRIATE POLICY THAT IS VIGOROUSLY FOLLOWED IN RESPONSE TO ALLEGATIONS OF STAFF ABUSE
The DOJ failed to show how the Center’s action in responding to allegations of abuse constituted a substantial deviation from acceptable professional standards, or that the custom or policy of responding to abuse at CHDC somehow played any role in the occurrence of alleged maltreatment. U.S. v. Pennsylvania, 902 F. Supp. 591. CHDC, however, offered evidence, through the testimony of Calvin Price, to show that there is a strict policy followed at the Center in response to allegations of maltreatment.
Once an allegation is made, reports are made to Child or Adult Protective Services and to the police. Tr. at 6873 (Price). The Maltreatment reports include an investigator’s report, which includes notifications made, interviews, records reviewed, relevant facts, and lists of attachments. Tr. at 5944-45 (Walsh). The attachments to the investigator’s report include incident reports, correspondence, letters, memos, emails, notification of investigative proceedings, witness statements, client documents, and relevant facility documents. Tr. at 5945 (Walsh). CHDC has a designated, independent investigator who conducts all of the maltreatment investigations. Tr. at 5945 (Walsh). Once any claims of maltreatment are made, employees at question are told to leave the Center immediately and they are placed on administrative leave. Tr. at 6873 (Price). If the allegation involved physical abuse, the resident is sent to the nurse or physician to be evaluated and all of the reports are sent to an investigator. Tr. at 6873 (Price). Five days later, the investigation is turned into the Arkansas Office of Long Term Care. Tr. at 6873 (Price). After the investigation is complete, CHDC administrators, Calvin Price, Marilyn Junior and Kathy Guffy, conduct an executive review and dissect the investigation in order to determine if the allegation is substantiated. Once the Center decides whether to substantiate the allegation, they make administrative conclusions which are reported
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to the team leader and department head to notify them of what action should be taken. Tr. at
6874 (Price). The employee accused of maltreatment is not permitted to return back to work
unless the investigation is complete and the abuse and neglect is unsubstantiated. Tr. at 6874,
5943 (Price, Walsh).
Dr. Kastner testified to his findings with regard to maltreatment at CHDC, stating that the
rates of abuse and neglect are extremely low in comparison to other facilities.
“And the rate of abuse and neglect at Conway Human Development Center is five per hundred per year. It was six times higher at that facility in Nebraska. In Nebraska, 90 percent of the professionals -- of the clients who were evaluated by their interdisciplinary team had a recommendation for community placement. And in Conway, virtually zero. And those are benchmarks. And they are available to anyone who wants to look at the Department of Justice's website in the findings letter they have published. So I'm saying, if someone cares about benchmarks, if someone cares about outcomes, there are places to go and places to look and data available and benchmarks that can be considered. And I think it's important. And I look, and I think about it, and I try to use them in my practice.”
Tr. at 3978 (Kastner).
Defense expert Dr. Kevin Walsh also did a detailed analysis of maltreatment
investigations at CHDC for the months of June and July of 2009, which included 13
investigations. Tr. at 5943 (Walsh). The 13 investigations analyzed by Dr. Walsh comprised
over 1,000 pages of documentation. Tr. at 5944 (Walsh). Among other things, Dr. Walsh found
that the turnaround for maltreatment investigations at CHDC is better than most ICF/MR
facilities and exceeds any relevant standards. Tr. at 5945-46 (Walsh).
One of the maltreatment investigations reviewed by Dr. Walsh involved an incident
where a resident was inadvertently left behind in a residence after other residents and staff had
left. Tr. at 5946 (Walsh). Dr. Walsh noted that in response that event, within a few days, CHDC
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developed a specific protocol to prevent that type of event in the future and trained over 200 staff on that protocol. Tr. at 5946 (Walsh).
Dr. Walsh extracted statistics from all of the maltreatment reports for six quarters from the beginning of 2008 and found that on an annualized basis, there were 27.33 incidents substantiated. Tr. at 5947-48 (Walsh). The per-person, per-year rate of substantiated abuse in peer-reviewed published literature ranges from 0.033 to 0.04 and the rate identified by Dr. Walsh for CHDC was 0.054, which is within the acceptable range of benchmarks. Tr. at 5948-49 (Walsh). The slightly higher rate of substantiated abuse at CHDC is likely because CHDC treats incidents where there was a lack of enhanced coverage (e.g. lack of 1-to-1 staffing) as “incidents of abuse” while other facilities do not. Tr. at 5949 (Walsh). The fact that Dr. Walsh was able to access data from CHDC easily is a sign that CHDC is tracking data and information better than similar facilities. Tr. at 5950 (Walsh). To further this point, the policy at CHDC to terminate employees who have committed abuse or neglect meets applicable professional standards. Tr. at 5975 (Walsh).
CHDC takes any maltreatment very seriously. Many CHDC employees testified at trial that there is a no tolerance policy at CHDC for maltreatment and reporting of maltreatment. Further, CHDC has low rate of instances in comparison to other facilities. The DOJ has not met their burden of proving that the system of reporting or addressing maltreatment is deficient in a way that would cause harm to residents of the facility. The system at CHDC for addressing maltreatment does not violate the constitutional rights of its residents.
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E. THERE IS NO CULTURE OF SILENCE AT CHDC “There is no culture of silence at CHDC.” Tr. at 6885 (Price). At trial, DOJ expert Carla Jo Osgood testified that she believes that there is a culture of silence at CHDC without any supporting evidence. Tr. at 51(Osgood). Calvin Price, the superintendant of CHDC, testified at trial that there is absolutely no culture of silence at CHDC. In furtherance and in support of his testimony, Mr. Price offered to the court the actual statistics that CHDC keeps track of on allegations of maltreatment that are reported each year. “In 2008, CHDC had roughly 56 allegations of maltreatment reported and only 8 of those involved employees that had worked at CHDC for 6 months or less.” Tr. at 6884, 6907 (Price). Although Osgood testified that she remembered that most incidents of alleged maltreatment were reported by new employees, the statistical evidence indicates otherwise. Tr. at 142 (Osgood). The Court also heard testimony from Barry Landen and Earline Stoddard, guardians of long time residents, K.L. and A.S., who combined, have a total of nearly 80 years of experience with CHDC and other facilities. These witnesses testified that there is no culture of silence at CHDC. Tr. at 3237 (Stoddard). Long time employee, Sarah Murphy, also deflated this accusation by Osgood: “The fact that I've been in direct care as an LST for two years, and then I worked in the classroom for several years, I think if there was any kind of culture of silence, I would know about it. And I believe it is actually contrary to that. I believe that there's encouragement from all sides to be sure and report to protect individuals.” Tr. at 4874 (Murphy). Osgood’s allegation that CHDC has a culture of silence has no basis in fact or logic. Tr. at 5976 (Walsh). Dr. Walsh testified that generally, the likelihood of staff not reporting abuse or
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neglect that they witness is more likely in a community setting than a modern, publicly operated institution such as CHDC. Tr. at 5976 (Walsh).
F. THE PERSONAL OPINIONS OF CARLA JO OSGOOD WERE COMPLETELY SUBJECTIVE AND SHOULD BE ACCORDED LITTLE OR NO WEIGHT BY THE COURT
DOJ expert, Carla Jo Osgood, offered testimony at trial that exhibited significant unfounded bias against institutional care. Her opinions were also based on the flawed methodology that she employed. As a result, this Court should reject or severely discount her opinions.
Ms. Osgood holds a B.A. in political science. Tr. at 205 (Osgood). Her graduate studies are in health ministries, pastoral family studies; she never completed her health ministries pastoral family studies degree. Tr. at 205 (Osgood).
Ms. Osgood’s educational background did not include any advanced scientific method or statistics courses; nor did her formal graduate level casework include statistical mental health nor filed study design nor quality and management nor survey methods or similar courses. Tr. at 205 (Osgood). Ms. Osgood has not taken any credit courses during her formal education that focus on healthcare policy or management. She stated that she did take courses on healthcare services and healthcare quality assurance but she could not say roughly the s or subject matters of those courses. In very general terms she was able to state that the courses related to “providing support services to individuals and families in counseling and/or type pastoral manner”. Tr. at 209-211 (Osgood).
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Ms. Osgood does not hold any advanced degree in the field of developmental disabilities. Tr. at 204 (Osgood). Other than prior experience at Muscatuck, working for Liberty Healthcare, Ms. Osgood does not work in an ICF/MR setting. Tr. at 206, 207.
Ms. Osgood is not certified by any quality improvement organization such as the American Society of Quality. Tr. at 209 (Osgood).
Dr. Kastner testified that being “shoulder to shoulder” with other professionals is not a legitimate form of training and is not a substitute for formal training. Tr. at 3954 (Kastner).
Ms. Osgood has not published any peer-reviewed articles. Tr. at 211 (Osgood). She has not made any presentations at any national conferences. Tr. at 212 (Osgood).
Prior to this case, Ms. Osgood has never given any expert testimony in a court of law and none of her prior reports in other matters have gone before a court and undergone judicial scrutiny. Tr. at 212, 213 (Osgood).
In Daubert, the Court stated that “the word ‘knowledge’ connotes more than subjective belief of unsupported speculation.” Osgood repeatedly testified to her subjective belief and made no attempt to do an objective evaluation of CHDC; she based a large portion of her opinions on speculation. This is supported by the evidence in many instances where she makes inaccurate statements and giant leaps, time and time again, with regard to the ICF/MR regulations, community standards and incidents that she claimed to have “observed” at CHDC.
Osgood, who held herself out to be an expert in ICF/MR regulations, did not have an appropriate understanding of the staffing ratio requirements in the ICF/MR regulations. The ICF/MR regulations require that staff be competent, but there is no regulation or professional standard that requires staff have their competencies defined and measured through any type of
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competency-based examination. Tr. at 5967 (Walsh). Dr. Kastner testified that there was clearly no shortage of direct care staff. Direct care staffing clearly exceeded the ICF/MR standards.
“I found it quite troubling that she (Osgood) couldn't recall the ICF/MR standard for staffing at an ICF/MR. I just didn't understand how you couldn't know that if you had worked at 15 or 20 ICFs. I couldn't understand why there was no focus on outcomes in her report if she's familiar with the instructions given to surveyors to focus on outcomes. I didn't understand the basis for her alleged expertise, because it wasn't apparent in her report, deposition, or testimony.” Tr. at 4044 (Kastner). It is quite clear that Ms. Osgood did no study of staffing at CHDC. Tr. at 5968 (Walsh). ICF/MR guidelines provide specific ratios for all staffing scenarios at CHDC and CHDC is compliant with those regulations. Tr. at 5968 (Walsh). Ms. Osgood’s unscientific method was evidenced when she counted staff at each residence but failed to consider that staffing ratios for a unit can include staff that are with residents in locations other than the unit itself. Tr. at 5969 (Walsh). The more appropriate standard that this Court should consider is the ICF/MR regulations and the technique that is utilized by ICF/MR surveyors. ICF/MR surveyors do not look at staffing numbers alone because the facility is responsible for organizing and evaluating its individual appointments, programming schedules, activities, materials, equipment, grouping assignments, and available staff in such a way that it maximizes benefit to the individual. Tr. at 5969 (Walsh). Another example of the infirmity of Osgood’s opinion is her lack of any statistical analysis of injuries at CHDC. Tr. at 5964 (Walsh). Ms. Osgood did nothing more than search for injuries that occurred at CHDC and then concluded that CHDC is a dangerous place. Tr. at 5964 (Walsh). Dr. Walsh testified that in the appendix of Osgood’s report, she listed out all of
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the documents she claimed to have reviewed over the course of twelve pages and she claimed she reviewed 13 administrative records and external reviews, 8 policy and procedure documents, 53 medical charts, and 55 “record folders,” 16 individual program plans out of 510 available to her, and two behavior plans. Tr. at 5964 (Walsh). However, she reviewed 115 investigationrelated documents. Tr. at 5964 (Walsh). Forty-three percent of the documents Ms. Osgood claimed to have reviewed were investigations where she knew that injuries or unfortunate events occurred. Tr. at 5964 (Walsh). Ms. Osgood went hunting for problems. Tr. at 5964 (Walsh). Osgood supported this finding in her own direct testimony about the documents that she reviewed. Tr. at 52 (Osgood). Ms. Osgood’s overwhelmingly disproportionate review of investigation reports, relative to all other documents she failed to review and were available to her, reveals a strong agenda that does not suggest that she did an objective analysis of risk management at CHDC. Tr. at 5965 (Walsh).
Unfortunately, every facility in the country that provides healthcare or related services is susceptible to having employees who abuse or neglect the individuals for whom they are supposed to care. Tr. at 5975 (Walsh). However, when asked about other facility statistics on abuse, Ms. Osgood claimed that she was not allowed to submit her findings from other facilities because of confidentiality rules. Tr. at 272 (Walsh). Therefore, she admits that she used no benchmarks to form her opinions and she simply feels that no abuse should be present. Tr. at 272 (Walsh).
Ms. Osgood’s also made a great deal of inaccurate statements. She relied on JACHO standards, which are only applicable to specific hospitals and have no relevance at CHDC. Tr. at 5971 (Walsh). Then she erroneously identified CHDC psych examiners as members of the human rights committees. Tr. at 5973 (Walsh). CHDC psych examiners are not members of the
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human rights committees, but rather non-voting consultants who serve an important role. Tr. at 5973 (Walsh).
Another example of Ms. Osgood careless method and unfounded speculation was her testimony that she saw small puzzle pieces lying around on a table in the 19 Maple residence that could be easily ingested by those with pica diagnosis. However, she admitted that she made no attempt to find out whether anyone in 19 Maple has a diagnosis of pica. Tr. at 256 (Osgood). When questioned on whether she knew if this was a real threat of harm to anyone in 19 Maple, she quickly changed her testimony and stated: “Even if there wasn't even anyone with pica behavior, there were multiple opportunities for people to trip and fall on those items that were scattered throughout the living unit.” Tr. at 256 (Osgood). So at this point in her testimony she appears to be absurdly alleging that she found that CHDC was violating the constitutional rights of its residents by leaving puzzle pieces on the floor which could cause a resident to trip and fall. Later in her cross-examination, Ms. Osgood finally admitted that she did not know if anyone in 19 Maple had pica and her testimony was completely baseless. Tr. at 256 (Osgood).
All of the preceding examples are important for the Court to consider, but the most glaring example of Osgood’s blatant disregard for the truth is when she knowingly testified about a gentleman who she observed in the day room with an “apparatus wrapped around his neck with no staff intervention”. Tr. at 95 (Osgood). Then, when questioned about this testimony on cross-examination, Ms. Osgood testified that she said it was “a phone cord looked-like item.” Tr. at 240 (Osgood). However, that is not how she testified on direct, rather, what she said was: “There was an incident where a gentleman laid sideways on the couch with some type of apparatus wrapped around his neck with no staff intervention.” Tr. at 95 (Osgood). After attempting to mislead the Court on her prior testimony, Osgood then attempted to cover-up her
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lack of knowledge about chewelry by questioning whether the chewelry was appropriate for that client. Tr. at 239 (Osgood).
The reality of this situation was that the gentleman in the day room was wearing chewelry for oral stimulation. Staff was not required to intervene because this was an approved therapy for this resident as an oral motor stimulating activity. Osgood did not know about chewelry, had never heard of it before she wrote her report, and was actively attempting to mislead the Court with her testimony. In fact, Osgood admitted on cross that she looked it up after her deposition, but claims that at the time of trial, she did not know how it is worn. Tr. at 239 (Osgood). Nevertheless, she failed to qualify her direct testimony when it was clear that at the time of trial that she knew that what she observed during her tour was not a telephone cord and was in fact chewelry. As it was, she was comfortable with characterizing it at the time of trial as an individual who had a telephone cord wrapped around his neck and staff who should have been intervening but were not. Even if Osgood had corrected herself during her direct testimony or even during cross-examination, it does not negate the fact that she holds herself out as an expert on ICF/MR facilities which serve individuals with mental retardation and other developmental diagnoses, but does not know about commonly used devices to help disabled individuals with oral motor skills and relaxation therapy.
G. CONCLUSION There is no policy or custom implemented at CHDC which would result in the abuse or neglect of a client at the Center and the DOJ has failed to provide this Court with any proof of any pattern or practice that would result in abuse. The DOJ also failed to prove that client-toclient aggression has either individually or in total risen to the level of a constitutional violation, much less that the official policy or custom at CHDC played any role in any alleged deprivation
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of care. To the contrary, Defendants have shown that client-to-client aggression is identified and addressed appropriately. Defendants also presented evidence that program planning at CHDC employs a reasonable approach consistent with generally accepted professional standards. DOJ expert, Carla Jo Osgood, offered inaccurate testimony at trial and exhibited a significant unreasonable bias against institutional care. Her opinions were also based on flawed methodology that she employed and her opinions should be afforded little or no weight by this Court.
V. CONDITIONS AT CHDC A. CHDC MEDICAL AND PSYCHIATRIC SERVICES 1. DEFENDANTS’ PSYCHIATRIC AND MEDICAL EXPERTS
Theodore Kastner, M.D. Dr. Kastner began working with the developmentally disabled in 1976. Tr. at 3943-3944
(Kastner). After finishing his medical training, he became the Director of the Center for Human Development at Morristown Memorial Hospital and was responsible for the programs for people with developmental disabilities. Tr. at 3946 (Kastner). The Center for Human Development addresses the needs of people with developmental disabilities across their life span. Tr. at 3946 (Kastner). He expanded that program across three hospitals in the northern part of New Jersey. Tr. at 3947 (Kastner).
Dr. Kastner has a medical degree. Tr. at 3949 (Kastner). He also was awarded a master of science in administrative medicine. Tr. at 3950 (Kastner). He has completed an internship and residency in pediatrics. Tr. at 3950-3951 (Kastner). He also completed a fellowship with training in psychiatry, neurology, rehabilitation and habilitative services, research, and
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psychology for the developmentally disabled. Tr. at 3951 (Kastner). He is board certified in pediatrics, neurodevelopment disabilities, developmental and behavioral pediatrics, and medical management. Tr. at 3955-3956 (Kastner).
Dr. Kastner supervised the operation of a licensed child study team. Tr. at 3947 (Kastner). He was the Director of a child evaluation center. Tr. at 3947 (Kastner). He personally performed the evaluations for the child study team. Tr. at 3948.
Dr. Kastner’s experience with the child study team, the early intervention system, and the case management unit provided knowledge about the IDEA and least restrictive environment. Tr. at 3948 (Kastner). He was the school physician for the deaf for twenty- two (22) years. Tr. at 3948-3948 (Kastner). In that capacity, he was often part of the group of professionals that worked with the sending school districts’ child study teams. Tr. at 3949 (Kastner). He received training on the Rehabilitation Act. Tr. at 3952 (Kastner).
Dr. Kastner was engaged as an expert to contribute to the AAMR expert consensus guideline services. Tr. at 3970 (Kastner).
Dr. Kastner has visited approximately 40 ICF/MR’s in the past 25 years. Tr. at 3975 (Kastner).
Dr. Kastner has collected benchmarks from other ICF/MR’s that can be compared to CHDC. Tr. at 3976-3977 (Kastner).
Dr. Kastner acknowledged that Defendants’ counsel has asked him to identify, in his review of any facility, any problems, inadequacies, or deficiencies. Tr. at 3982 (Kastner). In fact, he found significant deficiencies at one facility, Embreeville Center, he reviewed while working with Defendants’ counsel in Pennsylvania in a CRIPA action brought by the DOJ. Tr. at 3983 (Kastner). As to Embreeville Center, Dr. Kastner recommended that the State settle the
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case or close the facility. However, Dr. Kastner was asked to work again with Defendants’ counsel even after an unfavorable review at Embreeville Center. Tr. at 3983 (Kastner).
Dr. Kastner also found the North Princeton Developmental Center to be unacceptable. Tr. at 4382 (Kastner).
As further demonstration of his creditability and fairness in conducting reviews, although Dr. Kastner found CHDC to meet or exceed accepted professional standards, he opined that the State should close Alexander Human Development Center. Tr. at 3989 (Kastner). Alexander is “world’s apart” from CHDC. Tr. at 3989 (Kastner). CHDC is “a very fine facility which in many respects can be a model for other public ICF’s.” Tr. at 3989 (Kastner). In contrast, Alexander is “a troubled facility with serious quality of care concerns.” Tr. at 3989 (Kastner).
Dr. Kastner has worked in Nebraska developing 228 IPP’s for the Beatrice Center. Tr. at 3983-3984 (Kastner).
Dr. Kastner even worked for the Plaintiff in 1991 to review two (2) facilities in Wisconsin, Central Wisconsin Center and Southern Wisconsin Center. Tr. at 3972 (Kastner). He was asked to look at medical, neurology, and psychiatry. Tr. at 3972 (Kastner).
Theodore Kastner, M.D., is the President of the Developmental Disabilities Health Alliance (“DDHA”), which is a healthcare organization that served 7,000 developmentally disabled individuals who live in the community. Tr. at 3939-3940 (Kastner). He personally provided psychiatric and neurological consultations for those individuals needing such services. Tr. at 3941 (Kastner).
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Andrew Warren, M.D. Andrew Warren is an adult psychiatrist. Tr. at 4641 (Warren). Dr. Warren is English and
he holds an MB degree from England, a BS degree, an MA, and a doctorate of philosophy. Tr. at 4641 (Warren); Def. Ex. 372. The English BS, bachelor of medicine, and BS, bachelor of surgery, are equivalent to the American M.D. degree. Tr. at 4641, 4642 (Warren). Dr. Warren received his MB and BS from London University and his doctorate of philosophy, his master’s degree in physiological sciences, and his bachelor’s degree from Oxford University. Tr. at 4642 (Warren); Def. Ex. 372. Currently, Dr. Warren is an attending psychiatrist at Sheppard Pratt Hospital in Baltimore. He is also an associate professor at Johns Hopkins; the medical director of Sheppard Pratt day hospital; a consulting psychiatrist to Pickersgill retirement community; an instructor at the University of Maryland; a preceptor for the Philadelphia College of Osteopathic Medicine; and a consultant psychiatrist to the Gallagher Center for those with MR. Tr. at 4642, 4643 (Warren); Def. Ex. 372. Dr. Warren’s position at Sullivan Day Hospital, Sheppard Pratt Health System, involves overseeing the psychiatric care provided to the day hospital patients. Typically the patients are experiencing psychotic illness and some have mental retardation. As part of this position, Dr. Warren provides direct patient care. Tr. at 4644 (Warren). Dr. Warren was also a consultant psychiatrist to Rosewood Center, an ICF/MR. Tr. at 4643 (Warren). Dr. Warren has 53 peer-reviewed articles. Tr. at 4643 (Warren); Def. Ex. at 372. The majority of those articles are in regard to cellular and molecular conditions related to Alzheimer’s disease and Down Syndrome. Approximately 15 are related to clinical measure, and approximately 9 or 10 are related to individuals with MR. Tr. at 4644 (Warren).
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Louis Kraus, M.D. Dr. Kraus’ primary current positions are professor for the Women’s Board and the child
and adolescent psychiatry chief at Rush University Medical Center in Chicago. Tr. at 6196 (Kraus); Def. Ex. 202-A. As chief of child and adolescent psychiatry, Dr. Kraus, with the training director, oversees four fellows. The program consists of inpatient and outpatient services. They also provide clinical services for a residential facility. Dr. Kraus is the medical director for Easter Seals Therapeutic Schools, day schools for severely developmentally delayed children, primarily with autism. Tr. at 6196, 6200 (Kraus). Dr. Kraus received his undergraduate degree from Syracuse; his medical degree from Chicago Medical School; conducted his residency at Northwestern; and his child and adolescent fellowship at the University of Chicago. Tr. at 6196 (Kraus); Def. Ex. 202-A. Dr. Kraus is board-certified in the area of child and adolescent psychiatry. Tr. at 6197 (Kraus); Def. Ex. 202-A. He is also certified in general psychiatry and forensic psychiatry. Tr. at 6197, 6198 (Kraus). Dr. Kraus has experience in forensic work. He worked as a psychiatrist at the maximum security youth center in Joliet for nine years. Tr. at 6197 (Kraus); Def. Ex. 202-A. Dr. Kraus has prior experience as chief of child and adolescent psychiatry at Evanston Northwestern Healthcare, a large community-based hospital. Tr. at 6197 (Kraus); Def. Ex. 202-A. Dr. Kraus has worked as a consultant for the DOJ. He has reviewed two facilities in Maryland for a CRIPA evaluation. Also, he worked with the DOJ involving a consent decree with Arizona, assisting with the development of their medical and mental health program for juvenile corrections. Tr. at 6198 (Kraus). Dr. Kraus is a delegate to the American Medical Association for the American Academy of Child and Adolescent Psychiatry. Tr. at 6198 (Kraus); Def. Ex. 202-A. Dr. Kraus
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holds an elected position with the American Medical Association. Tr. at 6198 (Kraus); Def. Ex. 202-A. Dr. Kraus has clinical experience treating children and adolescents.
I have an extensive amount of inpatient work. I’ve worked at a number of different residential facilities, several different facilities, and several different therapeutic schools. As I had mentioned, I worked for nine years at a maximum security youth center in Joliet. I currently consult with about 12 to 15 different schools as their consulting psychiatrist. I have a private practice as well where I do both treatment as well as forensic work. And through the years, there’s a variety of things that I do. I also do a lot of advocacy work. I spend about two months a year off of work, sort of advocating to try to get services for kids in Washington and what have you. Tr. at 6198, 6199 (Kraus). Dr. Kraus is currently the psychiatric director of the Sonia Shankman Orthogenic School, a residential facility, serving approximately 50 children. Tr. at 6199 (Kraus); Def. Ex. 202-A. Dr. Kraus takes care of just under 50 students half a day a week at the Orthogenic School. The money does not go to Dr. Kraus, but rather to Rush. Tr. at 6369 (Kraus). Dr. Kraus consults with various school districts in Illinois with respect to clinical services for children and adolescents. Tr. at 6200 (Kraus).
David Fassler, M. D. Dr. Fassler graduated from Wesleyan University in Middleton, Connecticut, with a major
in biology and psychology. He received his medical degree from Yale Medical School. He conducted a residency at the University of Vermont College of Medicine and a residency in general psychiatry and a fellowship in child and adolescent psychiatry at the Cambridge Hospital in Cambridge, Massachusetts. Tr. at 4608, (Fassler) Def. Ex. 223. Dr. Fassler is a licensed physician in Vermont, Massachusetts, and New York. Tr. at 4608, (Fassler) Def. Ex. 223.
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David Fassler is a child and adolescent psychiatrist. Tr. at 4608 (Fassler); Def. Ex. 223. Dr. Fassler is board certified both in general psychiatry and in child and adolescent psychiatry. Tr. at 4609, (Fassler) Def. Ex. 223. Dr. Fassler has authored and co-authored several books. Some have even been translated into foreign languages. Tr. at 4609, (Fassler) Def. Ex. 223. Dr. Fassler has authored many journal publications. Tr. at 4609, (Fassler) Def. Ex. 223. Most of Dr. Fassler’s publications involve children and families. Some involve the reaction of children to chronic illnesses and some involve childhood depression. Tr. at 4609, (Fassler) Def. Ex. 223. Dr. Fassler has made a significant number of presentations. Tr. at 4609, 4610, (Fassler) Def. Ex. 223. Dr. Fassler has received awards and recognitions such as the 2000 Green Ribbon Award for public education and advocacy from the National Mental Health Association and the 2001 Braceland Award for public advocacy and education from the American Psychiatric Association. Tr. at 4610, (Fassler) Def. Ex. 223. Currently, Dr. Fassler is the clinical director of an interdisciplinary group practice in Burlington, Vermont. He oversees the practice; recruits clinicians; and develops new programs. Tr. at 4610, (Fassler) Def. Ex. 223. Dr. Fassler also holds an academic appointment. He is a clinical professor of psychiatry at the University of Vermont. He supervises and teaches residents. In the fellowship program, he interacts with residents, medical students, and child psychiatry fellows. Tr. at 4610, 4611, (Fassler) Def. Ex. 223. Currently, Dr. Fassler is the elected treasurer and on the board of the American Psychiatric Association (APA). Tr. at 4611 (Fassler). He is a distinguished fellow with the APA. He is also a fellow with the American Academy of Child and Adolescent Psychiatry. Tr. at 4611 (Fassler). Dr. Fassler was previously the chair of the Assembly of Regional Organizations, a member of the council which functions as a board of the Academy. Tr. at 4611, (Fassler) Def. Ex. 223.
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2. SOME OF DEFENDANTS’ TREATING PHYSICIANS Douglas Callahan, M. D.
Douglas Callahan, M.D. is the consulting psychiatrist at CHDC. Tr. at 5333. (Callahan). Dr. Callahan is board certified in general psychiatry. Tr. at 5323 (Callahan).
Dr. Holloway was fond of this term ‘adult psychiatrist’, which was, I think, intentionally disingenuous. I’m not certified as an adult psychiatrist. I am board certified in general psychiatry, which includes the ability to care for children, adolescents, and adults …. Tr. at 5352, 5353 (Callahan). Dr. Callahan started seeing some residents at CHDC beginning around 1990. Beginning in 1995 he started full-time on-grounds. Tr. at 5333 (Callahan). Dr. Callahan attended the University of Arkansas at Little Rock undergraduate school. He received his medical degree from the University of Arkansas Medical Sciences College of Medicine. His combined residency and psychiatric internship was conducted at the Arkansas Veterans Administration. Tr. at 5333, 5334 (Callahan). Part of Dr. Callahan’s accredited psychiatric residency was a rotation in child psychiatry. Tr. at 5323 (Callahan). Dr. Callahan’s work experience includes: on staff at the Veteran’s Administration; inpatient work at the Arkansas State Hospital working with primarily adults and some adolescents as a supervising section chief; acting medical director for the Arkansas State Hospital; part-time work with the mental health center Counseling Associates; full-time work with the Counseling Associates, a community mental health center, serving adults and children; and medical director for the Counseling Associates. Tr. at 5334, 5335 (Callahan). Dr. Callahan has experience working with the developmentally disabled since around 1985 working at the State Hospital and at the Community Mental Health Center. Tr. at 5335
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(Callahan). Dr. Callahan started seeing some residents at CHDC beginning around 1990. Beginning in 1995 he started full-time on-grounds. Tr. at 5333 (Callahan). Dr. Callahan has worked full-time with the developmentally disabled since 2001. Tr. at 5335 (Callahan).
Dr. Callahan has “had a great deal of experience with the population over the years.” Tr. at 5336 (Callahan).
Dr. Callahan has experience treating children. He explained: Well, when you’re in a community mental health system, you pretty well – it’s not that common, especially years ago, to have any child psychiatrists ….
Tr. at 5336 (Callahan). Seeing children was probably 10 to 15 percent of his caseload in the community mental health setting. He saw a smaller percentage at CHDC until they consolidated with children in 2004 or 2005. Tr. at 5336 (Callahan).
Denise Thomas, M.D. Denise Thomas, M. D. is the Medical Director at CHDC. She has held the position since
1995 or 1996. Tr. at 1724 (Thomas). Dr. Thomas is a licensed physician with a primary specialty in family practice. She is
board-certified in family practice. Tr. at 1724 (Thomas). Dr. Thomas has experience in providing medical services to the DD population. Dr.
Thomas has been at CHDC for twenty-one years. She has a sister with a developmental disorder. Tr. at 1755, 1756 (Thomas).
One of Dr. Thomas’ primary duties as medical director is to supervise the physicians. Tr. at 1725 (Thomas).
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Patricia Parmley, M.D. Patricia Parmley is a primary care physician at CHDC. Tr. at 5448 (Parmley). Dr.
Parmley is a developmental behavioral pediatrician. Tr. 4615 (Fassler). Dr. Parmley holds a bachelor of science in education from the University of Missouri at
Columbia; a master’s degree in educational research psychology and statistics from the University of Missouri at Kansas City; and a medical degree from the University of Arkansas for Medical Sciences. Tr. at 5448 (Parmley). Subsequent to medical school, Dr. Parmley performed her residency in pediatrics at Arkansas Children’s Hospital and her fellowship in developmental behavioral pediatrics. Tr. at 5449 (Parmley). Dr. Parmley began working at CHDC part-time in 2003 and began full-time in late 2004. Tr. at 5449 (Parmley). Dr. Parmley treats children and adults at CHDC. Tr. at 5449 (Parmley).
Dr. Parmley consults with a psychiatrist to provide services to children at CHDC. Tr. at 5449 (Parmley). Dr. Parmley has a consulting relationship with other treating professionals such as an endocrinologist, a pediatric endocrinologist, an infectious disease specialist, a pediatric cardiologist, and a pediatric pulmonologist. Tr. at 5463, 5464 (Parmley). Dr. Parmley is on the faculty of Arkansas Children’s Hospital. She uses her colleagues as resources for her work at CHDC. Tr. at 5464 (Parmley). Besides being a primary care doctor, Dr. Parmley is an attending physician at Arkansas Children’s Hospital for the pediatric rehabilitation division. Tr. at 5465, 5466 (Parmley).
Eldon Schulz, M.D. Dr. Eldon Schulz is the Medical Director for the Arkansas Division of Developmental
Disabilities. Tr. at 6177 (Schulz). Dr. Schulz attended undergraduate school at the University of
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Idaho in Moscow and medical school in South Dakota; performed his residency and internship in pediatrics at the University of California, San Diego; and performed a fellowship in child development at the University of Massachusetts in Worcester. Dr. Schulz spent six years with the army in Germany and was then recruited by the University of Arkansas for Medical Sciences. Tr. at 6177, 6178 (Shultz). Dr. Schulz has been working in Arkansas for 20 years. Tr. at 6178 (Schulz). Dr. Schulz is a licensed physician and holds board certification in pediatrics. Tr. at 6178 (Schulz).
Dr. Schulz current positions include the following: he is the Rockefeller professor for children with special healthcare needs within the Department of Pediatrics and The College of Medicine; he has a dual academic appointment in physical medicine and rehabilitation at The College of Medicine; as a functional role, he teaches medicine to medical students, residents, and fellows, and other disciplines concerning children with special healthcare needs; he conducts research; he writes grants; and he performs clinical service in various venues around the State of Arkansas. Tr. at 6178 (Schulz).
Dr. Schulz is a faculty member who practices at Children’s Hospital. Tr. at 6178 (Schulz).
Through a program with UAMS, Dr. Schulz is the Medical Director for the Dennis Developmental Center, a State diagnostic center for children with special needs. Tr. at 6179 (Schulz).
Dr. Schulz authored several peer-reviewed publications. Tr. at 6179 (Schulz).
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Jarrett Lea, M.D. Dr. Lea is a board certified family practice physician. He received his medical degree in
Little Rock and completed his residency in family medicine at St. Elizabeth’s Hospital in Illinois. Tr. at 4615 (Fassler).
3. PSYCHIATRIC AND MEDICAL CARE GENERALLY AT CHDC MET OR EXCEEDED ACCEPTED PROFESSIONAL STANDARDS
Dr. Kastner was able to conclude: I believe that both the administrative leadership and clinical leadership at CHDC are exceptional and rate them as excellent, and those would specifically include Mr. Price and Ms. Miller, who function as a superintendent and the head of the QI program, and Dr. Thomas and Ms. Green, who run the medical and social services departments. I was impressed with all four, and I think they're doing an excellent job. If I didn't believe that, I would say so.
Tr. at 4075 (Kastner). Dr. Kastner explained that the ICF/MR survey process is rigorous. Tr. at 4038 (Kastner).
They look at 489 tags or items. “It is very comprehensive and exhaustive.” Tr. at 4039 (Kastner). “And as a result, virtually no facility undergoes a survey without having some deficiency identified.” Tr. at 4039 (Kastner). And the fact that Conway has had some deficiencies is certainly no indication that it does not meet federal standards or does not provide high quality care.” Tr. at 4039 (Kastner). CHDC is fully certified as an ICF/MR facility.
Dr. Kastner conducted an independent review of CHDC using a standardized approach. Tr. at 4001 (Kastner). He obtained a stratified random ten (10) percent sample of charts consistent with the methodology that CMS would use. Tr. at 4001 (Kastner). A stratified
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sample was chosen to assure that it was representative of the population at CHDC, Tr. at 4001 (Kastner).
Dr. Kastner observed two (2) weeks of tours by Plaintiff’s experts. Tr. at 3999 (Kastner). He went back for another week without the Plaintiff’s experts. Tr. at 4000 (Kastner).
The quality of care at CHDC was very good to excellent in nearly every aspect. Tr. at 4007 (Kastner). Dr. Kastner would rank CHDC in the 90 to 95th percentile. Tr. at 4007 (Kastner). Dr. Kastner did not see any evidence of an inappropriate pattern of care or a pattern of care that was not consistent with professional standards. Tr. at 4007 (Kastner).
Dr. Kastner believes the provision of psychiatric services to residents of CHDC meets all appropriate standards of care. Tr. at 4218 (Kastner). The consultative model at CHDC meets generally accepted professional standards. Tr. at 4222 (Kastner). The diagnostic processes at CHDC are compliant with standards and the diagnoses at CHDC are consistent with the thinking of the rest of the field. Tr. at 4084 (Kastner). There is adequate monitoring of side effects. Tr. at 4084 (Kastner). Psychiatric management at CHDC is consistent with generally accepted clinical guidelines and clinical practices. Tr. at 4084 (Kastner). The monitoring of antiepileptic medication at CHDC complied with clinical practice guidelines. Tr. at 4083 (Kastner). The low rate of status epilepticus at CHDC shows that care processes are appropriate as to seizure management, Tr. at 4083 (Kastner).
The patterns of psychotropic medications and psychiatric diagnosis at CHDC are reasonable, Tr. at 4025 (Kastner). Direct care staffing was more than adequate at CHDC. Tr. at 4069 (Kastner). CHDC also has a fairly rich physician ratio. Tr. at 4069 (Kastner).
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Poor outcomes can occur even when the standard of care is being met. Tr. at 4031, 4032 (Kastner). It is not reasonable to say, as stated by Plaintiff’s experts, that poor outcomes mean poor practices. Tr. at 4033 (Kastner).
As Dr. Kastner noted: There will be outliers. There will be individuals who have an outcome that none of us would find acceptable. But that's part of being in the human services field. We all fail every day. Every one of my patients is going to die. And that does not mean that I'm a failure.
Tr. 4018 (Kastner). There are a very small number of guidelines specifically developed for persons with
developmental disabilities or with intellectual disabilities. Tr. at 4024 (Kastner). As to guidelines, Dr. Kastner stated:
If there's less evidence, practice parameters are called practice guidelines. And in those instances, you could expect deviation from the practice parameter in 50 or 25 percent of the cases, meaning compliance in 50 to 75 percent.
Tr. at 4021 (Kastner). And then there are situations where there is even less evidence and you have treatment options “where only 25 percent of the practitioners might be expected to comply.” Tr. at 4021 (Kastner). “And most organizations recognize that the quality of evidence is insufficient to articulate standards.” Tr. at 3992 (Kastner).
There is no standard for the psychiatric diagnosis of a person with developmental disabilities. Tr. at 4025 (Kastner). DM-ID does not have strong evidence to support it. Tr. at 4022 (Kastner). There is no evidence at all that it is a accepted a standard of care. It was never validated or studied. Tr. at 4022 (Kastner).
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Dr. Kastner contributed to the content of a book entitled “International Consensus
Manual” which Dr. Mikkelsen recommends as one of two books that should be on the shelf of
anyone interested in developmental disabilities. Tr. at 3969, 3970 (Kastner). Although the
International Consensus addresses evidence based practice, it was never meant to be a standard
rather it was intended to be an educational resource. Tr. at 3970 (Kastner).
Dr. Gary Stewart is CHDC’s on-call physician. Tr. at 1725 (Thomas). Dr. Stewart is on-
call the majority of the time. When he is unavailable, the other CHDC physicians cover on-call.
Tr. at 1725 (Thomas).
Dr. Stewart maintains a medical practice apart from his work at CHDC. Dr. Stewart’s
workload does not concern Dr. Thomas, as Medical Director of the facility. Tr. at 1725, 1726
(Thomas).
Dr. Stewart has privileges to admit CHDC residents to the local Conway hospital,
Conway Regional Center. Tr. at 1726 (Thomas).
Dr. Stewart is subject to peer review at physician meetings. Tr. at 1726, 1727 (Thomas).
Dr. Stewart does attend the physician peer review meetings. Tr. at 1727, 1728, 1756 (Thomas).
As to Mikkelsen’s allegations as to after hours on-call medical services, he could not
offer any standard. Tr. at 4173 (Kastner). Dr. Kastner stated:
And actually I wish he had suggested one because most ICFs don't have the availability of a full-time physician on site to provide after hours coverage. It's the outlier. I'm not saying -- you know, it's really unusual. And it's a wonderful thing. It's a great resource to the residents of CHDC that there is a full-time physician available after hours who is familiar with them, is familiar with the facility, with their personal needs. And that improves the quality of care. It actually improves continuity because you're not referring people who are acutely ill after hours to healthcare settings where there's no one who knows them. The typical ICF doesn't have the availability of Dr. Stewart and will have to send that
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individual not to the infirmary because most of them don't have an infirmary, but straight to the ER. And depending on the hospital and the doctor that's on-call, they very well could find someone there who don't know anything about them, and that exposes them to additional risks. And I think the after hours on-call services is actually one of the strengths of the facility.
Tr. at 4173 (Kastner).
The infirmary is for patients who are ill, who would benefit from 24 hour RN care. They
may require IV fluids, but their condition is not such that they need to be sent to the hospital. Tr.
at 5462 (Parmley).
The infirmary has never served as an impediment to proper care for residents. Tr. at 5463
(Parmley). Dr. Parmley stated that the infirmary is a “wonderful asset to have.” Tr. at 5463
(Parmley).
Registered nurses and LPNs are available at the infirmary 24 hours a day. Tr. at 5463
(Parmley).
Dr. Schulz assisted with the development of the role of the infirmary within the care
delivery spectrum.
And we used standards that were developed by the industry and applied them to our clients out th ere so that when they m et a certain level of clinical need, they could legitimately be transferred to a tertiary care cente r, such as Conway Regional or UAMS or at Children’s Hospital. T hat program we started eight years ago and it’s used every nursing shift, three times a day, if not more, if need be, to evaluate every patient th at’s sick enough to be in the infirmary. The idea was not to keep the patients too long so their status became less stable and we c ould ship them on to def initive care. And then that was used by the other facilities as well as a standard by which all patients would be judged to see if they need to go to the hospital.
Tr. at 6180, 6181 (Schulz).
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Plaintiff’s witness, Crawford, did not know the rate of hospitalizations that could
reasonably be expected at a facility such as CHDC. Tr. at 2945 (Crawford). Crawford did not
know whether the rate of hospitalizations at CHDC is higher or lower than what is observed at
nursing homes. Tr. at 2945 (Crawford). Crawford was unable to provide any specific instances
where the staff at CHDC failed to exercise professional judgment or violated standard of care in
the management of a specific individual leading up to hospitalization. Tr. at 2945, 2946
(Crawford).
As to Mikkelsen’s alleged concerns over “termination of life” decisions, Dr. Kastner
stated:
As I said yesterday, I take great offense to Dr. Mikkelsen's implication that there is any process at CHDC that relates to a decision to terminate life. That is -- it crossed a line for me. And I want to make it absolutely clear, it's unacceptable to describe the practices at CHDC in that fashion. People in the course of their lives, they reach a point where their lives will end and their loved ones need to be able to make a determination about the appropriateness of care that is rendered at the end of life.
One way of looking at that, characterizing the pattern of end of life care, is to look at the do not resuscitate orders. And Dr. Mikkelsen had a benchmark in his reports in the references that allowed us to compare end of life care in a very gross and general way between the Southbury Training School in Connecticut and CHDC. And that was the use of the do not resuscitate order. And I can't remember which one was 58 and which one was 59 percent, but they are both approximately comparable, meaning that the healthcare providers at Southbury Training School and the healthcare providers at CHDC are approaching this issue in generally the same way. There's no gross underutilization of DNRs at CHDC, there's no gross overutilization.
Tr. at 4175 (Kastner).
Dr, Mikkelsen had a “subjective concern” on his part that hospice was considered within
a few days of onset of an illness before it was clear that the illness was terminal. Tr. at 3849,
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3850 (Mikkelsen). However, Mikkelsen could not identify any specific instances where he believed that treatment was inappropriately withheld from a CHDC resident. Tr. at 3850 (Mikkelsen).
There is no evidence that there is any increased risk of aspiration pneumonia as compared to comparable facilities identified by Mikkelsen. Tr. at 4064 (Kastner).
Dr. Warren reviewed the use of stat meds at CHDC. CHDC’s use of stat meds meets generally accepted professional standards. Tr. at 4564 (Warren).
4. Psychiatric Care For Children or Adolescents at CHDC Met or Exceeded Accepted Professional Standards
Dr. Kraus’ role in this case was to assess the psychiatric services provided by CHDC to children residing at CHDC. Tr. at 6200 (Kraus).
The defendants sent Dr. Kraus a variety of documents with respect to expert opinions. However, Dr. Kraus selected his own patient records to review and his own on-site itinerary. Tr. at 6243 (Kraus). In conducting his review of CHDC, Dr. Kraus interviewed such individuals as Mr. Price, Ms. Miller, Ms. Henderson, Mr. Burgess, several psychologists, some resident staff, one or two nurses, Dr. Callahan, Dr. Schulz, Dr. Parmley, developmental pediatricians, and Dr. Lea. Tr. at 6200, 6201 (Kraus). Dr. Kraus reviewed the expert reports and depositions of Drs. Holloway, Mikkelsen, and Manikam. Tr. at 6201 (Kraus).
Dr. Kraus reviewed all the charts of children being treated with psychotropic medications, who were being seen by the psychiatrist or physician. Tr. at 6201, 6202 (Kraus). Dr. Kraus also reviewed: the 2004 CRIPA investigation; the January 2010 CARF accreditation letter; CHDC behavior support plans, safety plans; CHDC individual programming, behavioral programming, and policies; 2008 residential restraint policies; lab surveillance guidelines; 2005,
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2006, 2007 restraint summaries; DOJ experts’ curriculum vitae; April 2004 reports of findings of the Civil Rights Division; list of all residents; the declaration of Jodie Holloway; the 2009 CARF survey report; the pharmacy side-effect sheets; and the vitae of current CHDC physicians. Tr. at 6203, 6204 (Kraus).
Dr. Kraus conducted a site visit and made observations at CHDC. He essentially observed each child whose charts he reviewed. Tr. at 6203, 6204 (Kraus). He reviewed the various parameters, conducted staff interviews, performed chart reviews, observed all the children and adolescents on the psychiatrist’s caseload, and looked at those children, observed those children, very carefully. Tr. at 6239, 6240 (Kraus).
Regarding the biopsychosocial approach, at the time of Dr. Kraus’ assessment there was no national standard of care. Thus he relied on the practice parameter that was articulated in 2005 by the Academy of Child and Adolescent Psychiatry. He also relied on other standards. Tr. at 6234 (Kraus).
Overall the psychiatric care of the children residing at CHDC is reasonable and consistent with the community standards for care. CHDC meets accepted professional standards in its provision of psychiatric services to children. Tr. at 6212 (Kraus).
CHDC utilizes a psychiatric consultant, physicians with tremendous pediatric care experience, physicians trained in working with children with developmental disabilities, and a family practice physician. Tr. at 6213 (Kraus).
Dr. Kraus stated: I felt that the care was relatively impressive in regards to the level of stability that they’ve had, the lack of any type of severe morbidity or mortality, the lack of hospitalizations. These are kids who were having repeated hospitalizations and now are not. And variable attempts, very significant attempts in trying to lower
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medications on these kids, but for many of these kids, not having that possible and that they would become more aggressive.
Tr. at 6213 (Kraus). Having a psychiatric evaluation within 30 days of admission is not a definitive
requirement. “I think that it would be ideal if they could be, but certainly not a requirement.” Tr. at 6338 (Kraus).
Dr. Kraus saw “no negative sequelae of children” where the psychiatric evaluation did not occur within 30 days of admission. Tr. at 6368, 6369 (Kraus).
The developmental pediatricians, which I think go beyond primary care, and the family practice physician will access and look at the children. Typically, they don’t make medication changes, but they will be seen by physicians in the interim from when Dr. Callahan sees them.
Tr. at 6323 (Kraus). Dr. Kraus explained: …. I can’t tell you whether the primary care or the developmental pediatrician saw that child in that interim period. What I can tell you is when you look at the chart, there seems to be a level of stability with the child. There were no horrid adverse medication errors that can be seen. In my assessment of the kids, there were no horrid movement disorders or other types of side effects see. The one issue which we described yesterday in come detail regarding the lithium level was the primary issue. I think that this whole concept is greatly exaggerated and distorted.
Tr. at 6325 (Kraus). Dr. Kraus found that there is adequate communication between Dr. Callahan and the staff
and the other physicians. Tr. at 6213 (Kraus). The communication between Dr. Callahan and the staff and other physicians may not always be clearly documented in the charts, but the end result
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of the communication is documented in the charts. Tr. at 6214 (Kraus). Dr. Kraus knows that
Dr. Callahan has a comprehensive understanding of his patients, “really what is striking is how
many patients he knows without looking at the charts.” Tr. at 6220 (Kraus).
It is not appropriate for Dr. Holloway to use the requirements for inpatient psychiatric
facilities and apply them to a residential setting like CHDC for the developmentally disabled.
Tr. at 6206 (Kraus). Dr. Kraus explained:
Inpatient facilities are the most restrictive mental health interventions that we have. There are very strict requirements as a result of that, primarily related to Eight Amendment issues, but other, you know, restriction components as well. And that not only is it my opinion that one should not apply inpatient requirements to this facility, but in all of the other DOJ work - - and this is public knowledge - - that I’d done in regards to the juvenile correctional facilities, it was very clear, and this was discussed repetitively, that inpatient facilities are simply too restrictive to compare to, for example, a juvenile correctional facility, which it was their opinion was most closely related to a residential facility, but not to an inpatient facility.
Tr. at 6206, 6207 (Kraus). Similarly, Dr. Kastner believes that the application of JCAHO
standards to CHDC s inappropriate because those standards only apply to an inpatient psychiatric
unit at a hospital. Tr. at 4009 (Kastner).
Dr. Kraus noted that one consideration in assessing the adequacy of psychiatric care is
whether psychiatrists see an individual within one month of admission and at least quarterly
thereafter. However, Dr. Kraus clarified:
I think that that is a nice general concept, but one that may have variability to it. So there are some children that need to be seen far quicker than that. There are some facilities that have children that are very high suicide risks and they need to be seen sometimes within 24 to 48 hours. There are other types of facilities, Conway and others, where you may have children that are more medically unstable where it’s more important that they see the general physician, the pediatrician, to stabilized the medically.
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Tr. at 6235, 6236 (Kraus). In some cases, a wait for over a month before seeing a consulting psychiatrist is acceptable. “Each facility is different in regards to the practice.” Tr. at 6236, 6237 (Kraus). Dr. Kraus, in his own practice, typically does not make any changes when he first sees an individual. He likes to see an individual adjust to a program and he is not inclined to immediately change their medication. CHDC, similarly, would just continue their needs prior to the individual’s psychiatric consultation, perhaps taking labs, in the interim. Tr. at 6377, 6378 (Kraus). Dr. Kraus takes issue with the “guidelines that have a definitive number connected to it because it takes away the clinical judgment of the treater.” Tr. at 6328 (Kraus).
The parameters set by the American Academy of Child and Adolescent Psychiatry for CHDC’s use of psychotropic medications in child and adolescents “were essentially followed.” Tr. at 6207 (Kraus).
Dr. Callahan appropriately assesses his patients for side effects. Tr. at 6221 (Kraus). There was adequate assessment and documentation of side effects. Tr. at 6220, 6221 (Kraus). There are meetings where medication side effects are reviewed and then sent to the parents for their consent. Tr. at 6221, 6222 (Kraus). “…. I don’t know anybody that makes formal reports over relatively minor side effects. They adjust the dosage, talk to staff, and they move on.” Tr. at 6331 (Kraus). He would not expect every adverse drug reaction to be reported to him. Whether or not he would expect such a report depends on the significance of the adverse drug event. Tr. at 6374 (Kraus). An institution’s procedures regarding adverse drug events may be a positive thing to know, however, alone, it would not impact on patient care. Tr. at 6334 (Kraus).
Tardive dyskinesia is potentially a permanent movement disorder. It is a potential side effect from neuroleptic medications such as Thorazine or Mellaril, it is a lesser potential side
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effect for Risperdal or Seroquel (.3 percent likelihood, as opposed to 15 percent). Tr. at 6214, 6215 (Kraus). “I did not see tardive dyskinesia in any one of the kids that I saw.” Tr. at 6215 (Kraus).
Dr. Kastner found that the rates of tardive dyskinesia at CHDC are very low, and, in fact, are below the benchmark identified by Plaintiff’s witness, Holloway. Tr. at 4084 (Kastner). The AIMS instrument is used appropriately at CHDC and there is no greater occurrence of tardive dyskinesia at CHDC than would be observed at any other comparable facility. Tr. at 4084 (Kastner). Dr. Holloway said the rate of tardive dyskinesia that normally would be observed in an ICF/MR would be 2 to 20 percent, and the rate of tardive dyskinesia at CHDC is less than 2 percent. Tr. at 3979 (Kastner).
Extrapyramidal side effects such as tremors or akathisia are reversible. “Uncomfortable, but far less of an immediate concern.” Tr. at 6215 (Kraus). Extrapyramidal side effects are variable.
In other words, you may see children at times who may have some extrapyramidal side effects and other times they may not. At the time I was there, the kids that I observed, I saw nobody that had Parkinsonian or extrapyramidal side effects.
Tr. at 6215 (Kraus). It is appropriate for the medications to focus on the behavioral concern of the child. Absolutely. Medication focus should always focus on the behavioral concern. You don’t treat a diagnosis, you treat the behaviors.
Tr. at 6223, 6273 (Kraus). “What is important is to look at what the symptoms are and attempt to do your best to treat them.” Tr. at 6376 (Kraus).
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Regardless of the National Institutes of Health study on the efficacy of Celexa, Dr. Kraus still agrees with what he represented that “citalopram as an SSRI can still potentially be helpful in some children with autistic spectrum disorder.” Tr. at 6297 (Kraus). P. Ex. LK-1 and LK-2, articles on the efficacy of certain medications, do not “limit the clinical judgment and the potential usefulness of SSRIs in certain children with autism, depression, and anxiety disorders.” Tr. at 6300 (Kraus). “The use of citalopram or escitalopram for children with autism is still not contradicted.” Tr. at 6301 (Kraus).
[M]edication efficacy is followed up by a variety of staff and the physician through numerous methods, some through measurement, and we described yesterday, others through assessment of the child or reports from the staff. So some is quantitative and some is qualitative.
Tr. at 6318 (Kraus). Citing to a commentary written by Fred Volkmar, a preeminent expert on autism, Dr.
Kraus quoted: As the authors note, and as with all negative studies, there is always the possibility that a different result might have been obtained with a larger sample.
Tr. at 6371 (Kraus). Regarding sample size, Dr. Kraus did not agree that it is always the case that a larger sample will alter the results. He explained:
There’s typically a point in research where they’ll say this is sufficient or there’s enough repetitive studies to solidify this particular issue. This is an issue which is not completely clear and not completely understood, which is why he says we need more studies of this kid to advance research and guide clinical practice. We’re just not completely there yet.
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Tr. at 6384 (Kraus). Physicians should not rely upon just one isolated study to change their whole treatment. Tr. at 6371 (Kraus). There is not enough information in the study to result in such strong action regarding the use of citalopram. Tr. at 6372 (Kraus). “[P]eople should have caution about simply not using a medication that potentially could be helpful based on this one study.” Tr. at 6372 (Kraus).
Regarding Pl. Ex. LK-2 and LK-3, Dr. Kraus explained: One thing that the abstract describes in the results, as you’ve just described, is the side effects are, in part, associated with the citalopram. Of course, if one, on one hand, doesn’t give any medication and on the other hand gives the medication, that group of people getting the medications are going to have some percentage of side effects that the group not getting the medication is going to have, and that’s what they describe there.
Tr. at 6379 (Kraus). Dr. Kraus also questioned whether the results related to using the medication for anxiety or depression or actually using it for the same issues being addressed in the study. Tr. at 6380 (Kraus).
Dr, Kraus saw evidence in the records that primary care physicians follow up on medication changes at CHDC. Tr. at 6324 (Kraus).
Dr. Kraus reviewed the charts of the following children residing at CHDC: L.W., B.B., T.C., J.B., C.A, M.B., K.C., H.B., J.B., D.B., A.B., M.G., K.H., C.J,. R.D., M.M., R.C., H.A., B.H., C.L., T.N., J.M., T.T., C.T., S.W., N.S., J.R., T.S., C.S., C.W., M.W.. Dr. Kraus reviewed 35 charts in total. Some were not notable. Tr. at 6209 (Kraus). (The transcript notes review of T.M., however, Dr. Kraus explained that this was a typographical error and all references to “T.M.” in his report should be read as “T.N.”. Tr. at 6209, 6210 (Kraus).) Dr. Kraus “saw all, and if not all, almost all the children.” Tr. at 6216 (Kraus).
B.B.
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Tardive dyskinesia is a potential side effect of neurological medication. B.B. “presented as a child with cerebral palsy, or symptoms consistent with cerebral palsy.” B.B. did not have choreoathetic movements associated with tardive dyskinesia. Tr. at 6208 (Kraus).
C.L. C.L. had come from the community with orders from the community psychiatrist to bring his lithium level up to 600 milligrams twice a day. C.L. was monitored as they raised the lithium levels. After being placed at CHDC the level was .5. Within a week later the level was 1. Months later, C.L. was vomiting small amounts and had an unsteady gate. His lithium level was elevated to 4. CHDC sent him to the Conway Medical Center and then he was sent on to the University Hospital in Little Rock. It was determined that C.L. also had pneumonia. C.L. had several rounds of dialysis, but his levels did not decrease. It was learned later that the tubes that were used to draw his blood contained a lithium base, increasing the lithium level reported in his tests. His EKG tested normal. No kidney damage was determined. Tr. at 6216, 6217, 6218 (Kraus). C.L. has had no signs of kidney damage or any other long term effects from the raised lithium levels. Tr. at 6218 (Kraus). CHDC’s treatment and care of C.L. met accepted professional standards.
I think not only were they right on top of this and did intervene quickly, but I think if this had happened in a community place, this is a child that would have died. And then actually as opposed to looking at this as a problem from the center, I think that once you look at this and see how quickly they were able to respond, and having these hospitals and the quick response I think saved this boy’s life.
Tr. at 6218 (Kraus). Dr. Kraus would not agree that thirst is a sign of lithium toxicity. “Thirst can be a sign of simply being on lithium, period.” Tr. at 6282 (Kraus). “Refusing a meal is not necessarily a lithium issue.” Tr. at 6283 (Kraus). When asked if it were reasonable for CHDC
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to admit C.L. to the CHDC infirmary after testing a lithium level of 4 and to repeat the tests, for a more thorough reading, the next morning, before sending C.L. to the hospital, Dr. Kraus agreed that the first reading could have been artificially high if taken after the administration of lithium. Dr. Kraus deferred to the treating physician on his reasoning as to this decision. Tr. at 6375 (Kraus).
Dr. Kastner noted that there is no guideline on the management of lithium overdose. Tr. at 4026 (Kastner).
As observed by Dr. Warren, if someone is dehydrated, it is very easy for them to get lithium toxicity. “It is not a question of bad care.” Tr. at 4727 (Warren).
At the time of admission, C.L. was under the care of Dr. Farrell, the outpatient psychiatrist. C.L. was admitted to CHDC on respite. Tr. at 3878 (Mikkelsen). C.L.’s mother was unable to care for him in their home due to his agitation and tantrums, running away, and biting people. (Mikkelsen).
Between March 28, 2008, and May 1, 2008, at CHDC, Dr. Lea was the treating physician. Tr. at 3879 (Mikkelsen). C.L.’s dose in Lithium was increased by the outpatient psychiatrist, Dr. Farrell, before his admission to CHDC. Tr. at 3879 (Mikkelsen).
Lithium will achieve a steady state in approximately a week. A steady state is when the “same dose will produce the same blood level.” Tr. at 3879 (Mikkelsen). On March 28th the Lithium would not have been administered to C.L. for a sufficient amount of time to achieve a steady state. Dr. Mikkelsen agreed that it would be reasonable to have performed a second Lithium level on April 1, 2008. Tr. at 3879, 3880 (Mikkelsen).
Other than a reference to limited nausea and vomiting in one progress note, Dr. Mikkelsen agreed that C.L.’s records between March 28th and May 1st did not indicate any
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symptoms consistent with moderate or severe Lithium toxicity. Tr. at 3881 (Mikkelsen). Dr. Mikkelsen stated that per his report, C.L. was admitted to the infirmary on May 1st at 9:00 p.m. Tr. at 3881, 3882 (Mikkelsen).
Dr. Mikkelsen agreed that the Conway Regional Medical Center record uses the word “comatose”, but C.L. did not develop a coma until approximately four hours after he had been admitted there. Tr. at 3882 (Mikkelsen).
Dr. Mikkelsen stated that there would be significance in the white blood cell count on arrival to the hospital if C.L. had an infection. Dr. Mikkelsen was not aware that C.L. was diagnosed with pneumonia. Tr. at 3882, 3883 (Mikkelsen). C.L. received treatment with Omnicef after his return. It is an antibiotic. Tr. at 3883 (Mikkelsen).
Dr. Mikkelsen acknowledged that pneumonia can affect an individual’s level of hydration. To a “certain degree”, that hydration can affect Lithium levels. Tr. at 3883, 3884 (Mikkelsen).
C.L. has had a number of renal function tests since his lithium toxicity, and “basically the results have been normal so far.” Tr. at 3884 (Mikkelsen).
Dr. Parmley noted that CL receives monitoring by CHDC for his kidney function, every six months. It has always shown to be within normal range. Tr. at 5495 (Parmley).
Dr. Mikkelsen agreed that it is possible that C.L. has not been consistently been given the Lithium at home, and then had received it consistently at CHDC, his level could increase rapidly. “I’ve seen that.” Tr. at 3884, 3885 (Mikkelsen).
Dr. Holloway did not know if C.L. was being seen by an outside psychiatrist, when C.L. had been treated by Dr. Ferrell even before he was admitted to CHDC. Tr. at 2676 (Holloway). Dr. Holloway made accusations about Dr. Callahan and the quality of care at CHDC based on
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limited information about C.L.’s case. Dr. Holloway did not review C.L.’s medical history including his hospital records to see why his lithium levels increased. Tr. at 2677 (Holloway). Dr. Holloway agrees that when C.L. contracted pneumonia, that was the cause of his increased lithium levels. Tr. at 2677 (Holloway).
T.N. T.N. had an orchiectomy. In 2005 he had the removal of his right testicle, as there was no blood flow to that testicle. In 2009, it was detected that his left testicle was avascular and there was no testosterone coming from it. They removed his left testicle as well. Dr. Kraus observed him. He was calm. He asked him to raise his arms, and he showed no tremors. For the most part, Dr. Kraus observed him from a distance. When he did approach him, he had some interaction with him and he remained relatively calm. Tr. at 6118-6220 (Kraus). Dr. Kraus saw no evidence of any medication side effects for T.N., “[a]bsolutely none.” Tr. at 6220 (Kraus). Dr. Kraus’ also had an issue with Dr. Holloway’s findings on T.N. was regarding her observations of T.N.. The interaction that she described was at variance to what Dr. Kraus observed. Tr. at 6373 (Kraus). C.J.’s neurologist, outside of CHDC, prescribed the Keppra. Tr. at 3873 (Mikkelsen). What led Dr. Mikkelsen to his suspected diagnosis of NMS was “[t]he stiffness and the elevated C.K. and the correlation with the increase in the Haldol.” Tr. at 3873 (Mikkelsen). Dr. Mikkelsen, however, agreed that an elevated C.K. does not always mean someone has NMS. Tr. at 3873, 3874 (Mikkelsen). It can be true that an individual has really high C.K. scores and does not have NMS. Tr. at 3874 (Mikkelsen).
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Dr. Mikkelsen also admitted that upgoing toes may suggest a central nervous system lesion, such as a stroke, and that upgoing toes are not typically seen in NMS. Tr. at 3874 (Mkkelsen).
Dr. Mikkelsen acknowledged that “far less than 1 percent” of individuals who take neuroleptic medication develop NMS. Tr. at 3874 (Mikkelsen). He also agreed that a very small percentage of people who have NMS do not have a fever, and C.J. did not have a fever. Tr. at 3874, 3875 (Mikkelsen). As a result, it is unlikely that C.J. has NMS.
Dr. Mikkelsen did notice in other records that Dr. Callahan was aware and sensitive to NMS. Tr. at 3875 (Mikkelsen).
S.A. S.A. has had a very clear significant reduction in the amount of medications she takes. Tr. at 4238 (Kastner). CHDC has clearly improved the quality of her care. Tr. at 4239 (Kastner). Dr. Holloway admits that if S.A. was having medications tapered at CHDC, then that would be an indication that she is receiving quality care. Tr. at 2681 (Holloway).
A.C.J. Although Holloway claims that A.C.J. is on six (6) psychotropic medications, actually five (5) are anti-epileptic medications. Tr. at 4239, 4240 (Kastner). Also, her psychiatric care is provided by a psychiatrist outside of CHDC. Tr. at 4240 (Kastner). Dr, Holloway does not know whether A.C.J. has seizure disorder which requires him to take five different medications to manage, She also does not know if A.C.J. is seeing an epileptologist. Tr. at 2673 (Holloway). A.C.J. is an outliner because he has the greatest use of psychotropic medication at CHDC during the two-year period that Dr. Holloway studied. Tr. at 2673 (Holloway). A.C.J. isn’t even on Dr, Callahan’s caseload, because of her severe seizure
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disorder, and she is seen by Dr. Farrell at another private setting away from the facility, Tr. at 2673 (Holloway). A.C.J.’s parents chose Dr. Farrell because they had a long standing relationship with him. Tr. at 2673 (Holloway).
A.M.B. As to A.M.B., and Dr. Holloway’s alleged concerns, Dr. Kastner stated:
What I would say is that the symptoms were well characterized in the record. There was a determination, a judgment, made by the treating physicians as to the cause of those symptoms, and appropriate treatment was implemented. So there really isn't a sufficient basis in the record to allow a third party, such as myself or Dr. Holloway, to reach an independent diagnosis and therefore to criticize any treatment that might be offered to address those symptoms.
Tr. 4241 (Kastner). Diagnostic evaluations were “relatively comprehensive”. Dr. Kraus did not evaluate
them in detail, however, he noted that they were clearly part of the children’s files. Tr. at 6210 (Kraus). Dr. Kraus reviewed the diagnostic evaluations for: C.A., J.B., H.B., M.B., H.A., A.B., J.B., D.B., K.C., T.C., R.C., R.D., M.G., C.H., B.H., C.J., C.L., J.M., M.M., J.R., B.R., C.S., Z.S., T.S., N.S., C.T., C.W., S.W., B.W., M.W., L.W., J.W. Tr. at 6210 (Kraus).
T.C.’s dosage of Risperdal was reduced significantly over the period of time he was at CHDC. Tr. at 4184 (Kastner). He came to CHDC on high doses of Risperdol prescribed by a community physician. Tr. at 4184 (Kastner). Reductions in Respirdal are often associated with weight loss and T.C. lost weight. Tr. at 4185 (Kastner). T.C.’s weight never fell out of the range for an ideal body weight. Tr. at 4185 (Kastner).
T. C., is a six-year-old, had challenging behaviors that resulted in his placement at CHDC. As described by Dr. Kastner:
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Although T is 6 years old, he is large for his age and it is impossible for his petite grandmother to handle him when out of control. He will harm himself and others by banging his head, kicking, biting, pulling hair, and hitting. He will also eat nonnutritive items. He climbs constantly. To ensure his safety, there is no dining table in the room. Other measures to prevent injury are outside doors locked, bathroom doors locked, kitchen cabinets tied shut, refrigerator chained shut, faucet knobs removed, electric stove burners removed, mattresses placed on floor, and additional mattresses propped against the window in T's room. DDS service specialist attempted to find DDS special needs and integrated supports, however, there were no providers in the area. Tr. at 4185, 4186 (Kastner). Dr. Mikkelsen alleged that Dr. Callahan will prescribe two neuroleptic medications to children as young as the age of six, but T.C. was prescribed two neuroleptics by an outside physician before T.C. ever came to CHDC. Tr. at 4188 (Kastner). T.C. arrived at CHDC on an emergency basis for emergency respite. He was strapped to a papoose board to transport him due to his aggressive behavior. Tr. at 3868 (Mikkelsen). Dr. Mikkelsen agreed that T.C. was unable to be cared for at home. Tr. at 3868 (Mikkelsen). At the time of his admission, T.C. was taking Riperidone, Thorazine and Clonidine. Tr. at 3868 (Mikkelsen). Risperidone and Thorazine are neuroleptic medications and were prescribed by the physicians at the Arkansas Children’s Hospital. Tr. at 3868 (Mikkelsen). Dr. Mikkelsen agreed that the Arkansas Children’s Hospital is a referral specialty hospital. Tr. at 3869 (Mikkelsen). Dr. Mikkelsen agreed that by May 2009, the total daily dose of psychotropic medication for T.C. had been reduced. Tr. at 3869 (Mikkelsen). He agreed that Risperdal as used for autism can be effective. Tr. at 3870 (Mikkelsen).
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Dr. Mikkelsen clarified on cross-examination that he did not say that T.C. had a diagnosis
of dysphagia or that there was evidence in the record that he did, he said that he would suspect
some sort of swallowing problem. Tr. at 3870 (Mikkelsen).
Dr. Mikkelsen did not know whether T.C. is within the desired weight for his height. Tr.
at 3871 (Mikkelsen).
Dr. Callahan has done a sufficient job in the diagnosis of children. Tr. at 6222 (Kraus).
… When we look at the Diagnostic & Statistical Manual, it becomes far more complicated in regards to making diagnoses with kids with severe developmental delays and just severe mental retardation, and what becomes much - -you try to do it, you do your best. I think if you were to take ten psychiatrists and put them in a room with a child with a severe delay, they could all come up with potentially different diagnoses, all of which they probably could find a basis for in the DSM. What is most important is to look at what the behaviors are of the child, to have something that has some basis diagnostically, and then to look at what the behaviors are of the child so you can justify what the treatment is.
Tr. at 6223 (Kraus). Assessment of children at CHDC is diagnostically adequate and consistent
with the community norms and medically accepted professional standards. Tr. at 6224 (Kraus).
Dr. Kraus stated:
There may be more severe psychopathology in particular with the higher functioning kids, it becomes far more confusing and less clear in regards to definitive diagnoses. So when that’s the case, you could have ten child psychiatrists come in, and separate from the MR diagnoses, probably come up with ten different potential diagnoses that the child may have, some of which may have a medication treatment, others that may not.
Tr. at 6376 (Kraus).
Dr. Kraus reviewed the records for information as to why each child was referred to
CHDC. Regarding the children’s records that he reviewed, Dr. Kraus noted that they had
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interventions prior to their admissions to CHDC. Interventions included multiple
hospitalizations, the involvement of DCFS, multiple foster home placements, sometimes
specialized foster home placements, and placements with other residential services, such as
Easter Seals. Tr. at 6211 (Kraus).
Regarding the children than have been placed at CHDC, Dr. Kraus noted:
[T]hese kids had been in, many of them in multiple hospitalizations, with treatment with child and adolescent psychiatrists, such as at the University Hospital here in Little Rock, and still could not be stabilized on an outpatient basis. And I’m not sure if it could be completely appreciated how complicated the developmental delays, the behavioral difficulties, psychiatric and medical difficulties are of these kids and why they’ve needed this type of facility so that they can safely, hopefully, grow to as much as they can to their full potential, and in my opinion, having less likelihood of morbidity or mortality, both for themselves as well as others. Many, many of these kids were actually ultimately placed there because they’re so aggressive that even with all of the medications they’d been on could not be stabilized.
Tr. at 6212 (Kraus). The only other option for some of these children is to hospitalize them,
which is a “significantly more restrictive alternative.” Tr. at 6212 (Kraus).
Similarly, as to L. W., Dr. Kastner stated:
L displays inappropriate interpersonal and social skills. Reports indicate that he will avoid school peers and is often aggressive to siblings. L displays temper tantrums, aggression, destruction of property, and self-injurious behavior. L will bang his head to the point of leaving knots and scratches on his head. He has put his head through a large living room window at home and a window at the Arkansas Children's Hospital reception desk. L removed trim off the walls of his home, disassembled his dresser, turned over a home entertainment center and four televisions. His parents state that he does not appear to know what authority is.
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Tr. at 4233 (Kastner). L. W. could not be served by a waiver-funded provider because there
were behavioral services that it could not provide. Tr. at 4234 (Kastner).
Dr. Holloway admits that she made no attempt to check L.W.’s records to see what
medications that he came in to compare that to what he was on at the time of her review. Tr. at
2671 (Holloway).
The supine restraints, such as papoose boards, are consistent with regards to what is used
throughout the country. “[T]here was essentially no significant morbidity, and certainly no
mortality associated in recent time in regards to the use of restraint.” Tr. at 6208 (Kraus).
Dr. Kraus commented on Dr. Mikkelsen’s implication that some of the children’s
behaviors were worsening because of their environment at CHDC.
And the reality is that when you have a therapeutic milieu, when you have a group of kids that are interacting, with developmental delays or not, there are going to be interactions at times that will cause a child to react in a negative context. That’s simply a process of the milieu. You’ll see that on an inpatient unit, you’ll see that anywhere. Short of keeping a child in a bubble, which certainly is not going to help them, there’s no way to avoid that. If a child is going to have some ability to react to changes in their environment, perhaps these changes in the milieu, although in the short term may have some negative reaction, perhaps causing a child to become aggressive, in the long run may have a positive reaction if the child can learn potentially a better approach to responding to that type of change in their environment.
Tr. at 6224, 6225 (Kraus).
Aggression is discussed in terms of increasing and decreasing medication and is one of
the core components for stabilization. Tr. at 6320, 6321 (Kraus). Aggression is the reason a
majority of the children are placed at CHDC. Tr. at 6321 (Kraus). Aggression is specific
enough for treatment purposes. Tr. at 6321 (Kraus).
Dr. Kraus commented:
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The facility was remarkably comfortable. The kids with significant developmental delays in many of the yards were smiling, were surprisingly interactive with the staff. And is was just a striking process to see.
Tr. at 6204 (Kraus). The overall care of the children was reasonable. Their sleeping areas felt like bedrooms
and the cottages were homey. “There was nothing which I observed which led me to think their overall care was not being taken care of.” Tr. at 6226 (Kraus).
[W]hen you go through that facility, you see the staff, there’s a warmth to these incredibly disabled kids that I don’t think I’ve ever seen before. And there was just something very touching about it. Even though there’s no way to quantify that.
Tr. at 6228 (Kraus). Dr. Kraus did not fully evaluate staffing patterns. However, he was able to note that the staffing seemed adequate for the cottages which he evaluated. Tr. at 6225 (Kraus). The cottage staff were “amazing.” Dr. Kraus explained:
I’ve seen a lot of different facilities over my professional career. Most of the cottage staff had been there for years, and they were not just there, in my opinion, because it was a job. They truly loved taking care of these kids …. They had an understanding of the kids ….
Tr. at 6225 (Kraus). There are two pediatricians on staff at CHDC. Tr. at 5338 (Callahan). Dr. Parmley believes that her prescription of medications at CHDC to treat psychiatric
disorders in children and adolescents is within professional standards. “Professional standards are those practices that a reasonable person in a similar position with similar education would do in normal - - under normal circumstances.” Tr. at 5450 (Parmley). Dr. Parmley’s subspecialty
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training in developmental behavioral pediatrics is on the border between pediatrics and psychiatry. Tr. at 5450 (Parmley).
Dr. Callahan has made referrals of CHDC child residents to a child and adolescent psychiatrist. He has not done it frequently, “because of access”, but he has “had a couple of occasions.” Tr. at 5337 (Callahan). Recently, Dr. Callahan has tried to refer CB to an outside the facility child and adolescent psychiatrist. There had been a delay, the referred doctor had changed practices, but CB has been seen by another doctor at the referred medical center. Tr. at 5337, 5338 (Callahan).
Dr. Callahan did not tell Dr. Holloway that he is not a member of the treatment team. Tr. at 5339 (Callahan). Dr. Callahan is not a member of the team of those who are not receiving psychiatric care. Tr. at 5361 (Callahan). Most of Dr. Callahan’s input to the IDT is in writing. “That’s not uncommon for consultants.” Tr. at 5339 (Callahan). Dr. Callahan also provides verbal input to IDT members. Tr. at 5340 (Callahan). Dr. Callahan is available to the IDT for direct communication . Tr. at 5339 (Callahan). Dr. Callahan attends meetings such as a staffing upon request. Tr. at 5340 (Callahan). When Dr. Callahan formally visits a patient, various members of the treatment team may be present. Such members typically include the psychological examiner, a member of the direct care staff, family members, a nurse, and social worker. Tr. at 5339 (Callahan).
Dr. Callahan expects that his recommendations to the IDT are reviewed by them. Tr. at 5340 (Callahan).
I do make those recommendations on a routine basis both in writing as part of a scheduled routine visit, and in writing sometimes in response to a written question that comes up, and also sometimes verbally. If it’s something very significant, usually I’ll document it in writing, but, for instance, if I’m called about something, I’m probably not going to document that in writing.
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But the person that I call may write a note saying, ‘Discuss with Callahan about’ so and so. Tr. at 5340 (Callahan).
Dr. Callahan discusses the possibility of decreasing the need for psychotropic drugs for certain individuals with the IDT. “That’s an ongoing issue with most of our folks.” Tr. at 5341 (Callahan). Sometimes family is firm about not wanting to change or reduce psychotropic medications. Typically, however, newly admitted individuals enter CHDC on multiple medications and CHDS is successful in reducing those. Tr. at 5341 (Callahan).
Dr. Callahan discusses differential diagnosis with the IDT, and more so with the psych examiner. Tr. at 5341 (Callahan). Dr. Callahan does not document conversations on differential diagnosis on every little detail, “no more than any other psychiatrist does in real world standard of medical care.” Like “pretty much every physician does”, Dr. Callahan goes through diagnoses in his head but does not write them all down. Tr. at 5341 (Callahan).
Dr. Callahan discusses medication side effects and interactions with the IDT. “That’s a routine question at each visit.” Tr. at 5342 (Callahan). Taper criterion is based on symptoms and the tracking of those symptoms.
And then that’s - - information is recorded and usually summarized on a monthly basis. When they prepare a specific taper criteria, it might be that someone had no more than a certain amount of aggression in a given six-month period or a given year. Tr. at 5343 (Callahan). Dr. Callahan discusses the meeting of formal taper criteria in progress notes. He will then recommend whether or not to reduce the medication. Tr. at 5343 (Callahan). “The taper criteria is not the only time when a medication might be reduced, but it acts as sort of a trigger to remind folk to review that issue.” Tr. at 5353 (Callahan). In response to Dr. Holloway’s claim that taper criteria should be based on target symptoms relevant to the DSM-IV
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criteria, Dr. Callahan explained: “that’s not a widely accepted standard.” Tr. at 5343, 5344 (Callahan). [T]hat’s not the standard of care.” Tr. at 5344 (Callahan).
Dr. Holloway admits that the psychology examiners do not make the final decision on what taper criteria are set for the residents, they only make recommendations and it is again the pediatrician or primary care physician who decides on what the taper criteria is set. Tr. at 2644 (Holloway). Dr. Callahan provides input to the IDT through his written consultations and verbal interaction with them. Tr. at 2644 (Holloway). Dr. Holloway agrees that the primary care physician is on the IDT team and the psychiatrists consults with them and they make a determination, with the help of the ID team, whether or not a taper criteria is appropriate. Tr. at 2664 (Holloway).
5. DR. CALLAHAN IS FULLY QUALIFIED TO CARE FOR CHILDREN AND ADOLESCENTS
The Plaintiff alleges that Dr. Callahan must be certified in child and adolescent psychiatry in order to provide psychiatric consultation for children and adolescents residing at CHDC. The Plaintiff, however, was unable to cite to any appropriate standard to support this claim, and multiple experts and witnesses for the Defendants effectively disputed this claim.
Dr. Callahan works with the two pediatricians on staff at CHDC. Drs. Parmley and Shultz are at CHDC most of the time.
We communicate verbally, in writing sometimes if there's specific issues, and by telephone when I'm not there. I see them and talk to them pretty much every day I'm there as is true with the other primary care physicians.
Tr. at 5338 (Callahan). Dr. Callahan consults with the pediatricians on some of his psychiatric treatment and care. They discuss recommendations and provide Dr. Callahan with observations
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or information provided by the psychological examiner and nursing staff. Tr. at 5338, 5339 (Callahan).
Dr. Fassler reviewed various documents and made a site visit to CHDC in February 2010. Tr. at 4612 (Fassler). Dr. Fassler’s scope of review and focus was “fairly narrow.” Specifically:
It was to address a specific question, which was whether or not it was appropriate for a facility such as CHDC to receive psychiatric consultation from a general psychiatrist as opposed to a child and adolescent psychiatrist.
Tr. at 4612 (Fassler). To reach his conclusions in this matter, Dr. Fassler reviewed: CVs of facility physicians; some expert reports; background articles in the literature relative to the access to child and adolescent psychiatry; and the CARF survey. He interviewed a number of facility physicians. Tr. at 4612 (Fassler). Dr. Fassler interviewed Drs. Callahan, Shultz, Parmley, Lea, and Thomas. Tr. at 4614 (Fassler).
Dr. Fassler relied upon national standards. Such standards include literature regarding the access to child and adolescent psychiatry including articles from the Council on Graduate Medical Education; the American Medical Association; a Thomas and Holzer Publication in the Academy of Child and Adolescent Psychiatry Journal; data from the Academy of Child and Adolescent Psychiatry; a study by Koppelman; the National Ambulatory Care Medical survey; an article by Stubbe; and data from the Annie E. Casey Foundation. Tr. at 4612, 4616-4619, 4621, 4624, 4627 (Fassler; DF-1, DF-2.
Dr. Fassler found that given the shortage of child and adolescent psychiatrists, given that most child and adolescent psychiatrists do not have the experience of working with children and adolescents with developmental disabilities, and given that CHDC has arranged ongoing consultation services with a general psychiatrist, Dr. Callahan, who does have extensive
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experience working with this population, and has physicians and pediatricians ultimately
responsible for the delivery of care, utilizing a general psychiatrist instead of a child and
adolescent psychiatrist is not a departure from the generally accepted standard of care. Tr. at
4624, 4625 (Fassler).
In place of a child and adolescent psychiatrist, CHDC has arranged for ongoing
consultation services with Dr. Callahan, a board-certified general psychiatrist. Dr. Callahan has
extensive experience working with adults, adolescents, and children with developmental
disabilities. Dr. Callahan’s consultation is further augmented by two pediatricians, including a
behavioral developmental pediatrician, and family practice physicians. It is these physicians
who are ultimately directly responsible for the care of the pediatric residents. Tr. at 4625
(Fassler).
CHDC physicians may seek outside consultation, “outside of the usual consultants for
particular medical consultation. Such requests have always been approved. There is at least one
child who is seen by a child and adolescent psychiatrist in Little Rock. Tr. at 4637 (Fassler).
Dr. Fassler explained that the standard is that “physicians should try and do the best they
can to take care of their patients with the resources available.” Tr. at 4632 (Fassler). Dr. Fassler
described the great value to the experience possessed by Dr. Callahan as follows:
I believe I would disagree with your characterization of adequate services. What I'm saying is, I think a general psychiatrist with this amount of experience is adequate services, and I think if you recruit someone through a J-1 visa program, they may be a child psychiatrist, but it's unlikely that they have this kind of extensive background in treating children and adolescents with developmental disabilities. So most child psychiatrists don't have this kind of background. Of the 48 child and adolescent psychiatrists in Vermont, there's maybe one who really has this kind of expertise. So it's not just any child and adolescent psychiatrist, it's a child and adolescent psychiatrist with experience and expertise in this area.
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Tr. at 4633 (Fassler). He further stated: ”just having a child psychiatrist, if it's not a
child psychiatrist with expertise in this area, could actually make things worse. Tr. at 4635
(Fassler). There are relevant clinical considerations in the type of child and adolescent
psychiatrist who would be appropriate to practice at CHDC.
The reality is that most child and adolescent psychiatrists do not have particular expertise in the evaluation and treatment of developmental disabilities, and there's an article by Stubbe, Dorothy Stubbe, who is a training director who addressed this issue and surveyed the child and adolescent psychiatrists graduating from their training program, and they felt clinically least prepared in the areas of complex psychopharmacology, cognitive behavioral therapy, and the treatment of children with complicated developmental disabilities.
Tr. at 4624 (Fassler).
At the time of Dr. Fassler’s review in February 2010, there were approximately 51
residents under the age of 18 residing at CHDC. Tr. at 4616 (Fassler)
Throughout the country, general practitioners and pediatricians provide mental health
services to children. Tr. at 4620, 4621 (Fassler). Per the National Ambulatory Care Medical
Survey, 84.8 percent of psychotropic medication prescriptions were provided by general
practitioners or pediatricians to pediatric patients in office-based practices in the United States.
Tr. at 462, 4622 (Fassler).
There is a nationwide shortage of children’s mental health professionals. Tr. at 4616
(Fassler).
[C]hild and adolescent psychiatry in particular is probably the most underserved medical subspecialty. There’s a board shortage of all child mental health professionals, but in terms of child and adolescent psychiatry, the Council on Graduate Medical Education has on several occasions noted that we need about four times as many child and adolescent psychiatrists as we have.
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Tr. at 4616 (Fassler). There are only currently about 7,300 practicing child and adolescent psychiatrists in the country. Of those 7,300, only approximately 6,800 actually provide clinical care. Tr. at 4617 (Fassler).
The shortage of child and adolescent psychiatrists in Arkansas “seems to be particularly acute”, as it is 40 percent below the national average. There are “approximately 2.38 child and adolescent psychiatrists per hundred thousand people in the country as a whole, but in Arkansas, the ratio is 1.42 per hundred thousand. Tr. at 4617 (Fassler).
Citing a Thomas and Holzer publication in the Academy of child and Adolescent Psychiatry Journal, Dr. Fassler explained:
[T]he United States as a whole has 8,67 child and adolescent psychiatrists per hundred thousand youth, and in Arkansas during a comparable time period, the figure was 4.7 per hundred thousand. So representing approximately 54 percent of the national average, which is the eighth lowest number of child and adolescent psychiatrists per youth in the country. Tr. at 4617, 4618 (Fassler). There are 30 child and adolescent psychiatrists who are members of the Academy in Arkansas. There are no child and adolescent psychiatrists in the county of Conway, Arkansas. Tr. at 4618, 4619 (Fassler). In comparison, Vermont has 48 child and adolescent psychiatrists. In Arkansas “there are about 30 child and adolescent psychiatrists for a population of 3 million.” In Vermont, there are 48 members of the Academy for a population of 650,000, and that is not nearly enough. Tr. at 4620 (Fassler). Most of Arkansas, including Conway, has been designated as a mental health professional shortage area. Tr. at 4618 (Fassler). The AACAP has policy statements on the psychiatric treatment of children in hospitals. Tr. at 4622 (Fassler). CHDC is not a hospital within the meaning of the AACAP policies. Tr. at
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4622 (Fassler). Those policies are not intended to address psychiatric care at an ICF/MR or other residential facilities for individuals with developmental disabilities. Tr. at 4622 (Fassler). A policy was developed in June 2010, after Dr. Fassler’s report. It has not yet been widely disseminated. At this point, it is “not in general use or recognition or adoption.” Tr. at 4623 (Fassler). The AACAP and other professional organizations recognize that child and adolescent psychiatrists may not be available in certain circumstances. Tr. at 4623 (Fassler).
Dr. Fassler noted that the last CARF survey at CHDC was in December 2009 and that CHDC received a three-year accreditation. Tr. at 4613 (Fassler). The CARF reviewer, regarding the 2009 survey, specifically noted that CDHD is:
commended on the positive interaction between physicians, nursing, pharmacy services, and the teams that interact together to ensure that medication and therapeutic intervention are properly prescribed, administered, and monitored. And the CARF report further went on to state that the organization has a long history of providing high quality residential treatment services for adults and children with developmental disabilities and multiple chronic medical impairments and that services designed and provided for children, adolescents, and adults represent the combination of not only evidence- and research-based practices, but also the creativity, skill, and dedication of the staff members.
Tr. at 4613 (Fassler). The 2009 CARF report contained no specific recommendations regarding medical use. Tr. at 4613 (Fassler). The 2009 CARF report contained areas on integrated DD/mental health and behavioral health services for children and adolescents in residential settings and did not raise any specific concerns regarding psychiatric consultation. Tr. at 4613, 4614 (Fassler).
CHDC has made and continues to make efforts to hire a child and adolescent psychiatrist. Tr. at 4624 (Fassler). “[I]t’s not reasonable to assume that CHDC could easily identify and
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contract with a child and adolescent psychiatrist who had particular training and expertise in this area.” Tr. at 4625 (Fassler).
Dr. Fassler found that the arrangement between CHDC and a general psychiatrist for the provision of psychiatric care to pediatric residents is not unreasonable. “I don’t think it represents a significant deviation or departure from generally accepted standard of care.” Tr. at 4625 (Fassler).
Dr. Kraus agreed that Dr. Callahan could appropriately and adequately provide the psychiatric consultation for children and adolescents, and Dr. Kraus stated:
Although it's always a hope that one can get a child and adolescent psychiatrist to treat kids, the most recent parameter of sorts that's out from the Academy of Child and Adolescent Psychiatry, which actually just came out in June, clearly states that because of the work force shortage of child psychiatrists in the areas where child psychiatrists simply aren't available, that one wants to be able to have well-trained and experienced general psychiatrists in lieu of that because there really isn't an option. For example, in the county where Conway is, there are no child psychiatrists. Even when one looks around Little Rock, based on the statistics from the Academy of Child and Adolescent Psychiatry, at most, 18 child psychiatrists, although perhaps not all of them practicing. This would be an area where there is an obvious work force issue. Tr. at 6205 (Kraus). The American Academy of Child and Adolescent Psychiatrists does not specifically require that only a child and adolescent psychologist treat children and adolescents. It is acceptable for a general psychiatrist to treat children and adolescents in those situations. Tr. at 6205 (Kraus). Dr. Kraus made some effort to contact some child psychiatrists at the Arkansas Medical Center Department of Psychiatry. However, no one was able to get back to him. Tr. at 6227 (Kraus).
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Dr. Kraus concluded that Dr. Callahan has “done an overall very comprehensive job with very complicated kids, and very consistently.” Tr. at 6220 (Kraus). The psychiatric care that Dr. Callahan provides to the children and adolescents at CHDC meets accepted professional practice. Tr. at 6227 (Kraus).
Additionally, Dr. Kastner addressed Holloway’s claim that Dr. Callahan should be a child psychiatrist to render consultation to children at CHDC, and Dr. Kastner confirmed that there is no standard to support this claim. Tr. 4216 (Kastner). Dr. Kastner also describes how the publications relied upon by Holloway have been superceded, do not apply to a facility like CHDC, and do not define practices for the purposes of meeting the standard of care. Tr. at 4217, 4218 (Kastner).
Dr. Kastner also noted that Dr. Callahan works with pediatricians who have expertise in treating children with disabilities. Tr. at 4223 (Kastner). Also, the specialty of psychiatry, such as possessed by Dr. Callahan, includes the competency to care for children across their life span. Tr. at 4224. Consequently, Dr. Kastner agreed that it was appropriate for Dr. Callahan to provide psychiatric consultation for children and adolescents. Tr. at 4217-4224.
Dr. Mikkelsen admitted that the standard of care can vary from geographic region to geographic region. Tr. at 3794 (Mikkelsen). Reasonable care may vary from region to region depending on resources and availability of certain expertise. Tr. at 3795 (Mikkelsen).
Dr. Mikkelsen agreed that pediatricians often provide psychiatric services to children due to the unavailability of a child psychiatrist. Tr. at 3814 (Mikkelsen). Dr. Mikkelsen also agreed that in the community, psychiatric services are provided sometimes to children by nonpsychiatrists such as physicians, pediatricians, and neurologists. Tr. at 3814 (Mikkelsen).
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Regarding his work at MENTOR, Dr. Mikkelsen did not even know whether physicians without board certification in child psychiatry provide psychiatric services to children served by MENTOR. Tr. at 3814 (Mikkelsen).
Dr. Mikkelsen assumed that Arkansas is considered underserved in regard to child psychiatric services. Tr. at 3817 (Mikkelsen).
Dr. Mikkelsen agreed that the Arkansas Children’s Hospital is a referral specialty hospital. Tr. at 3869 (Mikkelsen). It would not be problematic to Dr, Mikkelsen if the Dennis Developmental Center, which is an affiliate of the Arkansas Children’s Hopsital, were directed by a pediatrician and not a child psychiatrist. Tr, at 3869 (Mikkelsen).
Although Dr. Holloway expressed concern about Dr. Callahan providing care to L.W. because Dr. Callahan was not a child psychiatrist, L.W. actually receives his psychiatric care outside of CHDC. Tr. at 4234 (Kastner). This is just one of many mistakes or misrepresentations by Plaintiff’s experts.
Holloway is unaware of whether the American Psychiatric Association – Council on Children, Adolescents and Families has a policy of helping psychiatrists to learn more about diagnosis and treatment of children. Tr. at 2640 (Holloway). However, she admits that there is no APA policy that prohibits general psychiatrists from treating or consulting on the care of children or adolescents in residential settings. Tr. at 2640 (Holloway).
Holloway doesn’t know how many child psychiatrists are in the state of Arkansas or in the county where CHDC is located. Tr. at 2641 (Holloway). Holloway agrees that child psychiatry is an underserved area of medicine. Tr. at 2641 (Holloway). Holloway admits that depending on the area, psychiatric services are provided to children by pediatricians and primary care physicians due to the shortage of child psychiatrists or even general psychiatrists. Tr. at
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2642 (Holloway). Holloway agrees that pediatricians can provide mental health psychiatric services for children. Tr. at 2643 (Holloway). Holloway admits that Dr. Callahan is only a consulting psychiatrist and the final decision on treatment is made by the pediatrician at CHDC,and no matter what Dr. Callahan recommends, the final call is made by the pediatrician or primary care physician. Tr. at 2644 (Holloway). However, Dr. Holloway did not meet with or speak to any pediatrician at CHDC and does not know how they interact or work in concert with Dr. Callahan. Tr. at 2649 (Holloway).
Dr. Holloway stated that there are seven (7) child psychiatrists in the Little Rock area, but she does not even know whether any of those seven (7) accept Medicaid or have any interest in providing care to children with developmental disabilities. Tr. at 2646 (Holloway). In Louisiana, Dr. Holloway’s home state, like Arkansas, there is also a shortage of psychiatrists, and any physician with a license to practice medicine can provide psychiatric services to children. Tr. at 2646 (Holloway).
Holloway strangely claims that a psychiatrist that has just completed the 2-year program on child psychiatry with no practice experience whatsoever would be more qualified to work with the children at CHDC than Dr. Callahan who has over 29 years of experience working with these developmentally disabled children and adolescents. Tr. at 2647 (Holloway).
6. THE PLAINTIFF AND PLAINTIFF’S WITNESS, DR. MIKKELSEN, INAPPROPRIATELY AND MISTAKENLY CLAIM THAT THE MORTALITY RATE AT CHDC IS HIGH
The Plaintiff’s witness, Dr. Mikkelsen, claims that the mortality rate is high at CHDC, and the Plaintiff disingenuously claims that residents at CHDC are more likely to die at CHDC than to move out. These allegations are irresponsible and false.
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Dr. Mikkelsen claims that CHDC does not compare favorably to one (1) facility in
Connecticut and four (4) facilities in Massachusetts. However, an examination of that data in
proper context does not support that claim.
The national mortality rate at public ICF’s, like CHDC, is 2 per thousand. Tr. 3980, 3978
(Mikkelsen).
Mikkelsen never offered a benchmark as to what mortality rate should be expected at an
ICF/MR such as CHDC. Tr. at 3980 (Mikkelsen). He failed to mention that the mortality rates
at the Connecticut ICF and the four (4) Massachusetts ICF’s that he used for comparison were 80
or 90 percent higher than at CHDC. Tr. at 3980 (Mikkelsen).
In actuality, CHDC compares very favorably as to mortality rate to the Connecticut and
Massachusetts facilities cited by Mikkelsen. Dr. Kastner observed:
The data available at Conway and the data available from Southbury Training School and Massachusetts allow meaningful comparisons based upon the average annual mortality rate. The average mortality rate at Conway was 21.6 years -- I'm sorry -21.6 per thousand. The average annual mortality at the Massachusetts ICFs was 39.4, and that's from the data published in 2007 and collected in 2005. It's the most recent data I could get. And in Connecticut at the Southbury Training School, over a period of, I believe, eight years, the average mortality rate was 43 per thousand. So just to review the three rates -- 21.6 at Conway, 39.4 in Massachusetts, and 43.1 in Connecticut. The rate of the increase in Massachusetts, the mortality rate is 82 percent higher in Massachusetts and 99 percent higher in Connecticut. The numbers involved in calculating these rates are sufficiently large as to allow a statistical analysis -- a simple statistical analysis called a chi square, which demonstrates that the difference in those rates is statistically significant.
Tr. at 4096, 4097 (Kastner)
“Age is by far the risk factor that has the greatest input into mortality. The older you are,
the more likely you are to die.” Tr. at 4090, 4091 (Kastner). The average age of residents at
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Southbury Training School is close to 60, while the average age at CHDC is much younger. Tr.
at 4091. So, the comparison of average age of mortality by Mikkelsen between Southbury
Training School and CHDC is inappropriate. Furthermore, Mikkelsen has no evidence that the
calculated age of death has any statistical significance and his findings are completely
meaningless. Tr. 4091, 4092 (Kastner). As Dr. Kastner stated:
Obviously, people at Conway are dying at a younger age, but in order to determine whether that is a statistically significant difference, you need to apply a statistical test, and Dr. Mikelson failed to do that. What you need to do in order to apply a statistical test is to provide the statistician with a distribution of the ages of the population at those three centers, which Dr. Mikelson did not produce. So Dr. Mikelson looked at a small number of outcomes, calculated an average and alleged that it was statistically significant without having performed any statistical analysis. And that is improper. You can't make an allegation without evidence to support it.
Tr. at 4093 (Kastner).
To demonstrate the flawed logic of Mikkelsen as to mortality rates, Dr, Kastner noted:
Now let's just follow along with his theory. If his theory is that the younger the age of death, the more inferior the quality of care, there is evidence to suggest that in both community -- both in home settings in Connecticut and Massachusetts. There is a high degree of concern. The average age at death of individuals at home in Connecticut was 32. The average age at home for individuals served in Massachusetts was 49.4. One would, if you follow Dr. Mikelson's logic, have to naturally conclude that those are the two most dangerous settings in the state of Massachusetts and Connecticut. And obviously, we shouldn't allow people to live at home because it's so dangerous. I don't believe this for a moment, and I hope you don't misunderstand my sarcasm. I probably shouldn't have presented it in that fashion, but the point being the age of death really has very little to do with the quality of care. It has much more to do with the age of the population. Rather than fight with Dr. Mikelson about whether they're older or younger, here or there, I am simply going to say that he failed to perform a statistical test and, therefore, there is no way to conclude based on his data that there is any difference in the age of death between these three groups.
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Tr. at 4093, 4094 (Kastner).
As to aspiration pneumonia and other causes of death in the Massachusetts facilities
referred to by Mikkelsen:
… 27 percent of the deaths at Conway were due to aspiration. 21 percent of the deaths in Massachusetts were due to aspiration. There is no statistically significant difference in the rates of aspiration pneumonia between the Conway center and Massachusetts ICFs. In terms of cardiopulmonary deaths, 14 percent of the deaths at Conway versus 19 percent of the deaths in Massachusetts. And cancer, zero percent Conway, 10 percent Massachusetts. Again, none of those differences will achieve statistical significance, and the reason is we're dealing with very small numbers.
Tr. at 4100, 4101 (Kastner).
At Beatrice Center in Nebraska, 47 persons who were medically fragile were moved to
other settings. Tr. at 3984, 3985 (Kastner). After 12 months, 12 of those 47 had died. Tr. at
3985 (Kastner). One of them died just five or six days after being transferred. Tr. at 3985
(Kastner). The DOJ did nothing. Tr. at 3985, 3986 (Kastner).
As to the plaintiff’s claim that a resident of CHDC is more likely to die at CHDC than to
move out, Dr. Kastner points out:
Well, I -- there is no data, I think, that's been presented by anyone about probabilities, looking at probabilities of death. I just don't know where that comes from. I don't believe it's in Dr. Mikelson's report. I don't believe it was represented in any direct testimony. There is no basis in any of the documentation that I saw to support such a conclusion.
Tr. at 4105, 4106 (Kastner).
Dr. Mikkelsen had no mortality rates for persons served by MENTOR group homes. Tr.
at 3845 (Mikkelsen).
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Dr. Mikkelsen testified as to a comparison of mortality rates at CHDC with those of other HDCs including Southbury Training School and Massachusetts. Tr. at 3845 (Mikkelsen). Dr. Mikkelsen has never visited Southbury Training School. Tr. at 3845, 3846 (Mikkelsen).
Dr. Mikkelsen did not know if there was an infirmary on grounds at Southbury Training School. Tr. at 3850 (Mikkelsen).
Dr. Mikkelsen possessed no statistical comparisons between Southbury Training School residents and CHDC residents as to the nature of their disabilities or medical conditions. Tr. at 3844, 3845 (Mikkelsen).
There are no children at the Massachusetts HDCs. Tr. at 3847 (Mikkelsen). Dr. Mikkelsen was unable to give statistical age ranges from Massachusetts to make a comparison with CHDC. Tr. at 3847 (Mikkelsen).
The figure Dr. Mikkelsen used for Southbury was an average age of 55 years old. Tr. at 3847 (Mikkelsen).
Dr. Mikkelsen did not know the percentage of individuals at CHDC who had a do not resuscitate order. Tr. at 3850 (Mikkelsen).
Dr. Mikkelsen did not know the average age of death for individuals served by MENTOR. Tr. at 3850 (Mikkelsen).
Dr. Mikkelsen had no average, overall average age of death for persons living in public ICF/MRs nationwide. Tr. at 3850 (Mikkelsen).
Although she commented on mortality rates, Crawford did not know the death or mortality rates from the ICF/MR where she worked. Tr. at 2947 (Crawford). Crawford also did not know the rate of death that could reasonably be expected at a facility such as CHDC. Tr. at
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2947 (Crawford). Crawford did not know the rate of death in nursing homes. Tr. at 2947 (Crawford). Psychiatric Care for Individuals Over 15 Years Old At CHDC Met or Exceeded Accepted Professional Standards.
Dr. Warren reviewed the psychiatric care provided at CHDC to individuals 16 years old and older. Tr. at 4648, 4649.
Dr. Warren toured CHDC, once in November 2009 and once in February 2010. Tr. at 4649. During his tour of CHDC, Dr. Warren interviewed various staff, reviewed patient records and documents, observed meetings, and met with some patients. Tr. at 4649. (Warren).
Dr. Warren selected the individuals he wished to interview. He interviewed Calvin Price, the superintendent; Buck Reddig, the clinical chief of psychology; Angela Green, the social services clinical chief, Gail Miller, the director of quality assurance; Dr. Denise Thomas, the medical director; Dal Burgess, the pharmacist; Linda Henderson, the quality improvement nurse, Sandra Gardner, the director of nursing; Melissa Allen, the medical technology supervisor; Dr. Callahan, the psychiatrist; Dr. Stewart, the on-call physician; Becky Brewer and Doug Hart, two of the five team leaders; and Anita Cooper and Michelle Messer, two psychological examiners. Tr. at 4652 (Warren).
Dr. Warren reviewed Dr. Callahan’s medical charts and notes. Tr. at 4649 (Warren) Dr. Warren reviewed CMS regulations. Tr. at 4649 (Warren). Dr. Warren reviewed enough residents to have a significant representative survey of the care. Tr. at 4650 (Warren). Dr. Warren explained:
Well, it was a randomly selected statistically significant sample. I looked at the charts of 27 patients which were randomly selected in a particular statistical way. And that represents 10 percent of the population at Conway who are 16 or over on psychotropic medicines, psychiatric medicines.
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Tr. at 4650 (Warren). Dr. Warren generated a random list of the 274 patients who were 16 or over and who were receiving psychiatric medicines, and selected every fifth name on the list. Tr. at 4651 (Warren). A statistically valid sample enables the generalization to the total population. Tr. at 4655 (Warren).
Dr. Warren reviewed 27 charts and interviewed approximately 17 of those individuals whose charts he reviewed. Tr. at 4655 (Warren).
Dr. Warren reviewed approximately 12 medical records of those reviewed or commented on by Plaintiff’s experts. Tr. at 4651 (Warren).
Dr. Warren stated that Drs. Holloway and Mikkelsen did not attempt to obtain a statistically random sample. Tr. at 4699 (Warren). Dr. Mikkelsen only provided a detailed review on seven residents with respect to psychiatric care. Dr. Holloway only provided a detailed review of 15, and only 9 with respect to psychotropic medicines and only 6 with respect to restraints. Their findings are not statistically generated and thus cannot be generalized to the entire CHDC population. Tr. at 4699 (Warren).
Dr. Warren is not a psychologist and, thus, did not review or make any findings as to psychology. Tr. at 4749 (Warren). “I was just looking at what the psychiatrist did.” Tr. at 4749 (Warren).
Dr. Warren assessed whether the psychiatric care provided to CHDC residents 16 years old and older demonstrated a reasonable exercise of professional judgment. Tr. at 4649 (Warren). Dr. Warren concluded that the psychiatric care provided to CHDC residents 16 years old and older demonstrated a reasonable exercise of professional judgment. Tr. at 4649 (Warren).
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From his review of the medical records and treatment plans, Dr. Warren found communications and interactions between the psychiatrist and the psychological examiners. Tr. at 4698 (Warren).
Dr. Thomas and the other physicians provide clinical oversight to Dr. Callahan. Tr. at 4702 (Warren). The records show that there are communications between the various disciplines.
The chart review shows there’s extensive communication between them, and the results of the statistical analysis that I did shows that there is frequently communication between Dr. Callahan, team members, consultants. As frequent as regular, it’s documented in the systematic ways as evidenced of two-way written and verbal communications.
Tr. at 4702 (Warren). Dr. Kastner similarily found no evidence to support Mikkelsen’s claim that there was
poor communication between physicians, consultants and other members of the clinical team. Tr. at 4127 (Kastner). Dr. Kastner observed that Dr. Callahan adequately communicates with the interdisciplinary team (IDT) by written communication. Tr. at 4225 (Kastner). “It’s a completely appropriate and reasonable practice.” Tr. at 4226 (Kastner).
Dr. Callahan is available to the primary care physicians by phone or in person. When Dr. Callahan is on grounds, he sees them and discusses particular individuals. “Of course, they are the one[s] that ultimately writes the orders for the psychiatric referral also, and the copies of my evaluations and consultations go to them.” Tr. at 5350 (Callahan). If Dr. Callahan sees that something needs immediate attention, he will print out a note and hand carry it to the physician explaining his thoughts. Tr. at 5350 (Callahan). The primary care physician actually writes the
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prescriptions. Thus, the physician can choose not to accept Dr. Callahan’s medication recommendation. Tr. at 5350 (Callahan).
Dr. Parmley believes that communications between physicians and Dr. Callahan meets accepted professional standards. Tr. at 5451 (Parmley).
Dr. Thomas noted that physicians “meet every day and talk. Informally, we talk about our patients every day.” Tr. at 1747. Informal meetings could involve the entire physician staff. Tr. at 1749 (Thomas). Dr. Thomas supervises the other physicians. However, each physician is responsible for their own case load. Tr. at 1752 (Thomas). Specific individuals may be discussed at the monthly physician meetings. Tr. at 1753 (Thomas).
Dr. Mikkelsen’s opinion that the communication between Dr. Callahan and the other professionals was inadequate was based merely on outcomes. It was not based on interviews of Dr. Callahan or other medical staff. Tr. at 3851 (Mikkelsen).
Dr. Callahan considers himself a member of the IDT. “I consult with them more than I am physically present in the numerous meetings they have.” Tr. at 5339 (Callahan). Dr. Callahan discusses policies and procedures with CHDC medical staff. Tr. at 5342 (Callahan). Dr. Callahan has had input into a number of policies. Tr. at 5324. (Callahan).
From his review of the medical records and treatment plans, Dr. Warren saw documented reasonable DSM-IV diagnoses. Tr. at 4698 (Warren).
From his review of the medical records and treatment plans, Dr. Warren found appropriate target symptoms associated with the diagnosis. Tr. at 4698. (Warren).
Dr. Warren observed rationale for medication changes. Tr. at 4698 (Warren). Dr, Warren agreed that Dr. Callahan personally evaluated each patient on psychotropic medications at a minimum of every three months. Tr. at 4698 (Warren). In each evaluation, Dr.
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Callahan expressed the taper criteria and evaluated whether target symptoms were appropriately treated by medications. Tr. at 4698, 4699 (Warren).
There are no standards about how long a psychiatrist should spend with a patient. Tr. at 4703 (Warren). In his own practice, at the hospital, Dr. Warren performs rounds because it is quicker, more efficient. Rounds do not ensure adequacy of care, as suggested by Plaintiff’s counsel. Tr. at 4733 (Warren). CHDC is different than a hospital setting. Dr. Warren explained:
You see the patients in a hospital every day. And an ICF/MR, I don’t think it would be too disruptive to have the patients being taken out of activity once a month or once every three months to see the doctor. Tr. at 4734 (Warren). Dr. Warren found that overall, psychiatric care provided at CHDC meets acceptable standards of care. Tr. at 4699 (Warren). Dr. Kastner found “clear evidence of an independent professional judgment made by Dr. Callahan in regard to whether or not a psychiatric disorder is present and what that psychiatric disorder is.” Tr. at 4228 (Kastner). Dr. Kastner found that Dr. Callahan’s pattern of care to be consistent with what other experts would recommend. Tr. at 4151 (Kastner). Dr. Warren disagreed with most of Drs. Mikkelsen’s and Holloway’s findings regarding the psychiatric care to individuals over the age of 16. Dr. Warren only partially agreed with Dr. Holloway on one case, the case of A.J. He could not find documentation whether it was founded or not. Tr. at 4699, 4700 (Warren). A.J. sees Dr. Farrell, an outside psychiatrist. Tr. at 4700 (Warren). Dr. Warren disagreed with all of Dr. Mikkelsen’s findings with respect to psychiatric care to individuals over the age of 16. Tr. at 4700 (Warren).
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M.W. M.W. was first referred to Dr. Callahan in 2004 due to an increase in aggression and selfinjurious behavior. He was diagnosed with generalized anxiety disorder, depressive disorder, and severe mental retardation. Tr. at 4656, 4657 (Warren). His self-injurious behavior and aggressive behavior have decreased. Dr. Callahan treated him appropriately with SSRI and Seroquel. The psychiatric care for M.W. demonstrates a reasonable exercise of professional judgment. Dr. Warren concluded that MW’s evaluation was thorough, a working diagnosis was made, medical decisions and doses were appropriate and side effects were monitored. Tr. at 4657, 4658 (Warren). Seroquel was being used to treat his diagnosis of dysthymic disorder, generalized anxiety disorder. Tr. at 4780 (Warren). When asked by Plaintiff’s counsel whether being bossy was a behavior to be monitored to make the determination whether to increase the Seroquel, Dr. Warren replied:
It wasn’t increased. He was assessed as having no side effects. His recent mild escalation was probably situational. The recommendation was to continue the current treatment and in view of the recent delay, not to take the Citalopram.
Tr. at 4785 (Warren). Dr. Warren further explained that anxiety, aggression, and impulse control often overlap and cannot be separated out for etiology. Tr. at 4786 (Warren).
J.D. J.D. was first evaluated by Dr. Callahan in 2002. He had a previous diagnosis of pervasive developmental disorder. He was receiving an anti-seizure medication, Tegretol. Dr. Warren concluded that J.D.’s medication was appropriate. Dr. Callahan considered all of JD’s etiologies and conservatively continued and monitored his medication. Under Dr. Callahan’s
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care, J.D. has shown reduction in the rates of all his symptoms and his behavior has improved. J.D.’s psychiatric care demonstrates a reasonable exercise of professional judgment. Tr. at 46584660 (Warren).
When asked by Plaintiff’s counsel about whether there was any discussion as to J.D.’s behaviors getting worse or better as his Tegretol was increased, Dr. Warren said:
No. On the return visit, it was felt he was doing better.
Tr. at 4789, 4790 (Warren). Dr. Warren further explained: A lot of it is you don’t have precise information, so you do your working hypothesis of what’s going on, you do a therapeutic trial of medicine, you look at outcomes, and the outcome in this case was positive. His rates went down and treatment is very conservative. He was on Tegretol to start with, they just increased the dose and he did better. A reduction in rates from about one to two per month in the early 2000s to zero over several months in 2008.
Tr. at 4790, 4791 (Warren). It would be standard practice in the treatment process to wait for periodic lab results. Tr. at 4792, 4793 (Warren).
C.C. C.C. was first evaluated by Dr. Callahan in 1998. She had been on Haldol and Cogentin as prescribed by another psychiatrist. She had a long history of severe aggression and self-injurious behavior. She was diagnosed with organic personality disorder and profound mental retardation. Dr. Warren concluded that her medications were appropriate. Under Dr. Callahan’s care, her behaviors remained stable and even improved. Complicating factors were considered and attempts were made to take her off the medications. C.C.’s care demonstrates a reasonable exercise of professional judgment. Tr. at 4660, 4661 (Warren).
L.F., C.P., D.B., J.G., T.B., S.L., A.F., A.W., A.D.W., C.G., H.B., J.L., R.C., H.A., W.L., S.S., D.D., N.C., D.K.,W.B., B.H., J.B., H.T.
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The psychiatric care of L.F., C.P, D.B., J.G., T.B., S.L., A.W., A.D.W., C.G., H.B., J.L., R.C., H.A., W.L., S.S., D.D., N.C., D.K., W.B., B.H., J.B., and H.T. represents “reasonable adequate standards of care, appropriate standards of care.” Tr. at 4662 (Warren). Most of these individuals were non-verbal and severely or profoundly retarded. Only two or three were verbal. Tr. at 4662, 4663 (Warren). (Dr. Warren was unable to make a conclusion as to A.F.’s care as he believed there were insufficient records to make a determination. “And that doesn’t represent a typical example of the patients at Conway because she was actually cared for by an outside psychiatrist.” Tr. at 4663 (Warren).)
The majority of these individuals have aggression or self-injurious behavior. Tr. at 4663 (Warren).
All of these individuals received a diagnosis or working diagnosis. Tr. at 4663 (Warren). All the medications prescribed for these individuals were tailored to the individual’s symptoms “as careful discussion in the notes of medicine selection … Side effects were routinely considered.” Tr. at 4663 (Warren). For a number of these individuals, decreases in medications were tried. For some, it was determined that it would not be prudent to try such a decrease. Tr. at 4663, 4664 (Warren). For all these individuals, environmental or other possible causes of behavior were considered. Tr. at 4664 (Warren). For the majority of these individuals, “the outcomes were positive or stable, either improved or remained stable.” Tr. at 4664 (Warren). The psychiatric care provided to S.S. by Dr. Callahan demonstrates a reasonable exerciseof professional judgment. Tr. at 4684, 4685 (Warren).
A.M.B.
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Dr. Warren did not agree with Dr. Holloway’s allegations with respect to A.M.B. The record did not support Dr. Holloway’s allegation that there is a lack of implementation, adequate system of detecting, reporting, responding to, and documenting drug-induced side effects. Dr. Warren disagreed that Dr. Callahan neglected to reveal a diagnosis of tardive dyskinesia or acataphasia resulting from treatment with antipsychotics. Tr. at 4685, (Warren).
Dr. Callahan diagnosed the presence of abnormal facial and body movements and he also discussed the risks and benefits of continuing the antipsychotic medication despite the presence of early tardive dyskinesia. Tr. at 4685 (Warren). He monitored side effects and blood tests. He used ongoing behavioral strategies and made a reasonable review of pertinent history. Tr. at 4686 (Warren). While all neuroleptics can cause tardive dyskinesia , Seroquel, which AMB was receiving, has the least likelihood of causing it. Tr. at 4686 (Warren).
Dr. Callahan’s psychiatric treatment of AMB met generally accepted professional standards. Tr. at 4686 (Warren).
S.A. Dr. Warren found no evidence to support Dr. Holloway’s claim that there was no notation to reference reasons for the use of 4 milligrams per day dose of Guanfacine, a dose greater than the maximum for S.A. Tr. at 4687 (Warren). S.A. was receiving Guanfacine upon admission to CHDC. Dr. Callahn noted he would consider tapering it. Guanfacine is a commonly used drug for ADHD in children. A long-acting formulation of Guanfacine called Intuniv was recently approved and the maximum dose is 4 milligrams a day. Tr. at 4687 (Warren). S.A.’s vital signs were monitored and were within the normal range. Tr. at 4688 (Warren).
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Dr. Warren also disagreed with Dr. Holloway’s allegation that there was no differential diagnosis and target symptoms associated with DSM-IV. S.A. has an appropriate diagnosis of ADHD, autistic disorder, oppositional defiant disorder. The DSM-IV diagnoses and target symptoms are discussed throughout the patient’s records. Tr. at 4688 (Warren).
Dr. Callahan met the accepted professional standards of care in his provision of care to S.A. Tr. at 4688 (Warren).
J.S. Dr. Warren found no evidence to support Dr. Holloway’s allegation that it was essential that the psychiatrist and interdisciplinary team determine if the present treatment regime is effective to minimize utilization of restraint. Tr. at 4688 (Warren). To the contrary of Dr. Holloway’s allegation, Dr. Callahan was evaluating J.S.’s response to prescribed psychotropic medicines, followed diagnosis related symptoms, and made changes to medications based on positive responses or side effects. Tr. at 4689 (Warren). Per his longterm knowledge of J.S., he planned to discontinue or decrease the antipsychotics and place the patient back on Mellaril which had been successful in the past. Tr. at 4689 (Warren). Dr. Callahan’s recommendation to change J.S.’s prescriptions from Zyprexa to Mellaril “represents a reasonable exercise of clinical judgment.” Tr. at 4689 (Warren). Dr. Callahan met accepted professional standards in his treatment of JS. Tr. at 4690 (Warren).
T.N. T.N. is a “very difficult patient.” He was hyperactive and difficult to control at home. Before he came to CHDC he was at a different center where they had to separate him from the other clients. Tr. at 4690 (Warren). Dr. Callahan’s note says that TN was so hyperactive and
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self-abusive that he had to be restrained from hurting himself and destroying property. Tr. at 4691 (Warren). Dr. Callahan followed him closely. He diagnosed him with attention deficit disorder, hyperactivity, autistic disorder, stereotypic disorder with self-injury, and profound mental retardation. Tr. at 4691 (Warren).
The records demonstrate that Dr. Callahan was cognizant of the risk of tardive dyskinesia or neural malignant syndrome (NMS). Tr. at 4691 (Warren). Dr. Callahan recommended cautious attempt to reduce his Altose, due to the risk of tardive dyskinesia or NMS. Tr. at 4691, 4692 (Warren).
Dr. Warren did not agree with Dr. Holloway’s allegation that there was multiple clinical lapses of communication between Dr. Callahan, Dr. Stewart, the consulting neurologist and the consulting hematologist. The records demonstrate multiple communications between these professionals concerning T.N.’s care and the risk and benefits of Depakote. Tr. at 4692 (Warren).
Dr. Warren also disagreed with Dr. Holloway’s allegation that Dr. Callahan was prescribing medication to T.N. to treat aberrant behavior rather than DSM-IV diagnosis symptoms. The medications were prescribed specifically for DSM diagnosis of bipolar disorder, OCD. Tr. at 4692 (Warren).
Per the American Journal of Mental Retardation, Dr. Warren explained: [T]hey state even when only a tentative or nonspecific diagnosis can be made, a clinician may need to focus on one or more behavioral symptoms as the targets for treatments. And these symptoms on their own may be targets for treatments. And they list such as self-injurious behaviors, physical aggression, impulsivity, hyperactivity, a lot of things.
Tr. at 4693 (Warren).
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Dr. Warren does not agree with Dr. Holloway that an individual’s behavioral symptoms should not be the target for treatment. Tr. at 4693 (Warren).
T.N.’s low platelets as well as monitoring and discussion on those counts were noted in the chart. They were thought primarily to be the cause of a viral illness. Depakote was continued. When the viral illness passed, his platelet count returned to baseline. Tr. at 4695 (Warren).
Dr. Mikkelsen expresses some concerns about T.N.’s low platelet count which he thought was related to the use of Depakote. However, Dr. Kastner demonstrated that the low platelet count was due to an infection and had “very little to do with whether he’s taking Depakote.” Tr. at 4177, 4178. (Kastner).
And I think the whole thing is a straw man thrown out there to make the facility look bad when it has absolutely nothing to do with monitoring side effects, but clearly indicates that CHDC is managing this patient in a very appropriate manner. And when he becomes acutely ill, they recognize it, they refer him to the hospital, he receives timely treatment. And I would hold forth that T.N.’s care is really an illustration of the excellence in care that’s provided at CHDC. Tr. at 4179 (Kastner). Dr. Callahan’t treatment of TN met generally accepted professional standards. Tr. at 4695 (Warren). More than five doctors were treating T.N. during the period of time covered by the records Dr. Mikkelsen reviewed. Tr. at 3859 (Mikkelsen). Dr. Mikkelsen did not recall the primary care physician during that time. Dr. Mikkelsen knew T.N. was being treated by a neurologist, but he did not refer to him in his notes in his summary. He did not review all the primary care physician’s interdisciplinary notes. Tr. at 3859, 3860 (Mikkelsen).
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Dr. Mikkelsen agreed that T.N. fit the profile for chronic noncyclic hypomanic behavior. According to Dr. Mikkelsen, the appropriate treatment for such is mood stabilizers and possibly SSRIs. He suggested that they begin with lithium or valproic acid. Tr. at 3860 (Mikkelsen). Dr. Mikkelsen was aware that T.N. has a seizure disorder and agreed that Depakote is a brand name valproic acid that can be used for seizures. Tr. at 3861 (Mikkelsen).
Dr. Mikkelsen agreed that it was significant that T.N.’s Risperdal dosage, while on the Depakote, was reduced from 9 to 2.5 milligrams a day. Dr. Mikkelsen agreed that the risks of treatment with Risperal are greater than with Depakote. Tr. at 3861 (Mikkelsen).
Dr. Mikkelsen agreed that guardian consent is needed to treat a patient. Tr. at 3862 (Mikkelsen).
Dr. Mikkelsen did not have a problem with the use of clonidine for T.N. Tr. at 3863 (Mikkelsen).
It was not Dr. Mikkelen’s contention that the reduction in the platelet count to 16,000 was solely due to the use of Depakote. Tr. at 3863 (Mikkelsen). When asked whether the decision to maintain a patient on Depakote with a platelet count of 56,000 did not violate the standard of care, Dr. Mikkelsen replied:
I think I said there would be a difference of opinion among reasonable people about that. I guess the answer to your question then would be yes. Tr. at 3864 (Mikkelsen). Dr. Mikkelsen was aware that T.N. was being followed by a hematologist for his low platelet count. Tr. at 3864 (Mikkelsen). The infectious disease specialist speculated about the low platelet count being due to a viral infection leading to bone marrow suppression. Tr. at 3865 (Mikkelsen). Dr. Mikkelsen did not think that simply marginally reducing the Depakote would
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have a dramatic effect on bringing the platelet count up. Tr. at 3865 (Mikkelsen). T.N.’s seizures were well controlled. Tr. at 3865 (Mikkelsen). Dr. Mikkelsen attributes that to the Depakote. Tr. at 3865, 3866 (Mikkelsen). Dr. Mikkelsen agreed that Dr. Callahan noted that the increase in Depakote seems to have been helpful regarding T.N.’s bipolar disorder. Tr. at 3866 (Mikkelsen). Dr. Mikkelsen stated that he did not know if it was a statistically true statement but acknowledged that Dr. Callahan would subjectively conclude that there was some benefit to the Depakote. Tr. at 3866 (Mikkelsen).
Dr. Mikkelsen acknowledged that T.N.’s platelet count recovered to its baseline levels even with the ongoing treatment of Depakote. Tr. at 3866 (Mikkelsen).
C.J. Dr. Callahan’s diagnosis was that C.J. was showing early signs of dementia of the Alzheimer’s type. Dr. Warren found that the evidence supported the diagnosis, as of lack of deterioration in cognitive skills. Tr. at 4696 (Warren). Dr. Warren did not agree with Dr. Mikkelsen’s findings regarding use of anticonvulsant and antipsychotic medication for C.J. Dr. Warren explained that Keppra was prescribed on the recommendation of the consulting neurologist. Dr. Callahan recommended a reduction or termination of Keppra at the time of the mental status change. The primary care physician chose to reduce rather than discontinue the Keppra. Tr. at 4696, 4697 (Warren). Per Dr. Warren, the record did not support Dr. Mikkelsen’s allegation that Dr. Callahan failed to identify oculogyric crisis, nor did it support Dr. Mikkelsen’s thought that C.J. had neuroleptic malignant syndrome. Tr. at 4697 (Warren). C.J. did not have oculogyric crisis. Tr. at 4697 (Warren).
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The hospital physicians considered neuroleptic malignant syndrome. “In any event, whether she had it or she didn’t have it, the standard treatment for NMS is the discontinuation of the antipsychotic medication, which is what Dr. Callahan had recommended.” Tr. at 4697 (Warren).
Dr. Warren saw no evidence that Dr. Callahan’s recommendations led to C.J.’s premature death. Tr. at 4698 (Warren).
Dr. Warren found that Dr. Callahan’s care and treatment of C.J. met accepted professional standards. Tr. at 4698 (Warren).
Dr. Mikkelsen questioned the use of Keppra with C. J. and alleged that Haldal caused neuropeltic malignant syndrome. Dr. Kastner explains how neuroleptic malignant syndrome “was not the cause of death, was not a contributing factor to the cause of death, and actually did not occur in this patient.” Tr. at 4190-4197 (Kastner). “[T]here is no departure at all from any standard of care”. Tr. at 4197, 4902 (Kastner). Even Dr. Mikkelsen admitted that a diagnosis of neuroleptic malignant syndrome in the absence of a fever, and C. J. has no fever, is a rare occurrence. Tr. 4199 (Kastner). Dr. Kastner explained why C.J. clearly did not have NMS. Tr. at 4198, 4199, 4200, 4203, 4204 (Kastner). C.J. actually died of pneumonia. Tr. at 4202 (Kastner).
W.B. Dr. Warren agreed that it appears from the records that during the period when W.B. was receiving Geodon and Ativan, Dr. Callahn had not seen WB right away. However, [t]hat doesn’t necessarily mean he wasn’t seen by a physician. The PCP also sees people.” Tr. at 4808 (Warren).
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Dr. Warren found that Dr. Callahan’s care and treatment of W.B. met accepted professional standards. Tr. at 4811, 4812 (Warren).
C.L. As to C.L., who had lithium tonicity, Dr. Mikkelsen incorrectly claims that C. L. was comatose when admitted to the hospital. Tr. at 4121, 4122 (Kastner). Dr. Kastner “really [had] trouble with the characterization that C.L. suffered in any way as a result of the care provided by CHDC.” Tr. at 4123 (Kastner). C.L. was being treated for pneumonia which can impair hydration and can raise the lithium level. Tr. at 4123, 4124 (Kastner). This is actually an example of “very good care” according to Dr. Kastner. When Dr. Mikkelsen learned that C.L. had pneumonia that may have caused his lithium tonicity, he then claimed that the lithium may have caused him to aspirate and resulted in aspiration pneumonia. As Dr. Kastner noted, there is no evidence that C. L. had dysphagia or was aspirating. Tr. at 4126 (Kastner). Although Mikkelsen claims tht C. L. had difficulty swallowing a pill on one occasion, this is not dysphagia. Tr. at 4126 (Kastner). There is also no evidence that he had aspiration pneumonia. Tr. at 4126 (Kastner). Dr. Callahan considered environmental and behavioral factors. He noted that she is blind, has autism and had brain surgery at the age of 6, diagnosing her with an anxiety disorder. Dr. Warren explains:
So, he therefore, reasonably identifies conditions in the patient that could be the etiology of her regression rather than the aggression just being environmental. And a sort of larger question is even if there were possible environmental factors contributing to her behavior, would it be against ethical standards to treat her with medicines. And for her degree of severe self-injurious behavior and aggression, the expert consensus guidelines I mentioned earlier clearly indicate the treatment with medicine is appropriate …
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Tr. at 4682 (Warren). It is often not possible to make a specific diagnosis. Tr. at 4683 (Warren). S.S.
Dr. Warren saw evidence that Dr. Callahan considered changes in behavior before he tapered or changed any medication recommendations for S.S. He also considered input from others as to her behavior before he made any adjustments. Tr. at 4684 (Warren). Dr. Warren saw no evidence that Dr. Callahan only changed his medication recommendation because her mother so requested. Dr. Callahan had acquired input from others before even speaking with S.S.’s mother. Tr. at 4684 (Warren). Dr. Callahan considered the guardian’s request with a cost-benefit analysis. Dr. Warren concluded:
I think he was okay with doing this. The cost-benefit analysis was he had three reports that the behavior was drastically worse on Mellaril. The guardian wanted the change. The change looked reasonable. There was no clear contradiction to it, so he did it.
Tr. at 4805, 4806 (Warren). Dr. Miklelsen claims that Dr. Callahan deferred to the guardian for S.S. as to whether to
use Zyprexa, but Dr. Kastner points out that the primary care physician is a consultant and it was the primary care physician who made the treatment decision based also on the consultation by an endocrinologist. Tr. at 4181, 4182 (Kastner).
There are three physicians who concur with that recommendation as did the guardian. And if Dr. Mikkelsen wants to allege that all three physicians violated the standard of care, he'd have to demonstrate that, which I don't think he can, or acknowledge that it's the way that they felt practice should be implemented for this specific individual.
Tr. at 4182 (Kastner). Furthermore, Dr. Kastner noted: So I don't think this individual illustrates any pattern at all because there was no standard for a pattern of care
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articulated, there was no pattern of care described. In this case, isolation certainly couldn't support evidence of a pattern being present. And I would disagree as to whether or not this is even representative of care that deviates from an accepted standard at all, because there are three physicians that concurred with the treatment. They made a judgment that the treatment was appropriate. Tr. at 4182 (Kastner). Dr. Mikkelsen incorrectly testified that physicians can stop medication without guardian consent. Tr. at 4183 (Kastner). Dr. Warren reviewed the medical charts of some patients reviewed and cited by Drs. Mikkelsen and Holloway. Tr. at 4664 (Waren). D.F. D.F. was admitted to CHDC in 1968; she was referred to Dr. Callahan in 2007. She was referred due to changes in behavior, compulsive behavior. DF has severe mental retardation and signification medical problems such as seizure disorder. She was diagnosed with major depression and OCD. She took an antidepressant, Serotonin, for depressive disorders; Serotonin also helps with obsessive compulsive symptoms. Risperidone was added for the treatment of agitation and psychotic symptoms. Psychiatric care with respect to DF was within the reasonable exercise of professional judgment. Tr. at 4664, 4665, 4666 (Warren). Dr. Callahan considered alternative treatment for D.F. The IDT had also discussed behavioral strategies. D.F. was also tried off Risperdone, but her behaviors worsened. Her behaviors improved once it was restarted. Tr. at 4666, 4668 (Warren). Dr. Warren did not agree with Dr. Mikkelsen’s opinion that D.F. had difficulty with the introduction of an antipsychotic medication for someone who was already identified as having
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significant behavioral and environmental factors contributing to the problematic behaviors. Tr. at 4667 (Warren).
“[A]ugmentation of an SSRI with neuroleptic is standard treatment for difficult compulsive behaviors.” Tr. at 4667 (Warren).
B.L.H The psychiatric care provided to B.L.H. met generally accepted professional standards. B.L.H. has a complex history of mental health diagnosis. He has profound mental retardation, history of NMS (an adverse reaction to Haldol), bipolar disorder, pervasive developmental disorder, pica, prior diagnoses of autism, intermittent explosive disorder, depressive disorder. When attempts were made to redirect B.L.H., he would often become more aggressive, he was very strong, and would bite people. Dr. Callahan gave him a working diagnosis and treated him conservatively, he recommended the reduction of Haldol and reduced and discontinued the Propanolol. His behaviors worsened, becoming more aggressive with eye-poking behavior. Other medications were tried. Lithium and Depakote were started, adjusted, and monitored; first the Lithium and then the Depakote. After many attempts for referral, he was sent to Little Rock for ECT. He significantly improved. The maintenance with the ECT did not work and he relapsed. He was prescribed Mellaril. Tr. at 4668 - 4672 (Warren). ECT is electroconvulsive therapy. It is used for mania, “which is standard.” Tr. at 4798 (Warren). “Mania is a condition often with hypersexuality, agitation, aggression, all kinds of things.” Tr. at 4799 (Warren). “ECT has fewer side effects than medicines.” Tr. at 4799 (Warren).
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Dr. Callahan’s trials with these medications for B.L.H. should not reflect negatively upon Dr. Callahan. “[H]e would try different members of that class of medicine, standard practice, good standard practice.” Tr. at 4672 (Warren).
Dr. Warren did not agree with Dr. Holloway that Dr. Callahan did not consider the neuroleptic side effects as a cause of anxiety. Dr. Callahan addressed the side effects. He considered the AIMS test. Tr. at 4672, 4673 (Warren).
Most psychiatrists can identify akathisia by observation. Tr. at 4801 (Warren). Dr. Warren also disagreed with Dr. Holloway’s criticism that Dr. Callahan let the psych examiner take the lead in changing B.L.H.’s medications. Tr. at 4672 (Warren). The IDT communicated concerns and considerations. Dr. Callahan outlined a plan in his note for changes in medication based on the behavior. Tr. at 4673 (Warren). “[A]nd the primary care physician could decline that recommendation if he wanted or the psychological examiner could speak again directly to Dr. Callahan if she wanted. It’s standard operation of a multidisciplinary team.” Tr. at 4673, 4675 (Warren). D.H. D.H. is profoundly mentally retarded with medical problems such as seizure disorder, blind, occasional pica, a history of low platelets. He was referred to Dr. Callahan due to behavior problems. He had a behavior program which he was no longer responding well to. Dr. Callahan reviewed his history and reached a diagnostic formulation. He made recommendations for treatment of an anxiety disorder secondary to seizure disorder with behavioral interventions. Serotonin was prescribed for use if he did not improve with the interventions. Dr. Callahan monitored the effects of the medications. Tr. at 4674, 4675 (Warren).
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Dr. Warren did not agree with Dr. Mikkelsen that Dr. Callahan did not actively treat known significant medication side effects. Dr. Callahan gave evidence that he felt the problem was not just environmental, but an anxiety disorder. Tr. at 4676 (Warren). Contrary to Dr. Mikkelsen’s concern that Seroquel caused sedation, Seroquel actually showed to be effective. Tr. at 4677 (Warren).
Their expert consensus guidelines for treatment of behavior problems in mental retardation and that even - - well, they say, they emphasize that even when a specific diagnosis is made, the condition should address behavior symptoms that may be appropriate targets for the treatment, and even if an identifiable psychiatric diagnosis cannot be made, medicines can be used to treat specific behavioral symptoms. And they state that medication’s definitely recommended as a part of an initial treatment plan for self-injurious behavior with a risk of lasting harm, for aggression to others that poses a physical risk, and the lack of response to psychosocial interventions. All of those things would apply to this patient.
Tr. at 4677 (Warren). Dr. Callahan provided reasoned justification for his diagnosis of anxiety disorder when
he saw DH at the initial visit. Tr. at 4677, 4678 (Warren). Side effects were clearly monitored and documented. “It was clear that the physicians were communicating, the platelet levels were actively monitored, and the choice was made not to change the medicines.” Tr. at 4678 (Warren).
Every lab test would be signed off by a physician and the physician would see him. Tr. at 4802 (Warren).
Dr. Callahan’s notes reflect his strategy to the physician regarding changes in platelet counts. Tr. at 4803 (Warren). D.H.’s platelet counts were followed by the physician. D.H. was
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also being seen by a neurologist who “doesn’t think it is imperative he comes off the Depakote.” Tr. at 4804 (Warren).
The psychiatric care provided to DH met accepted professional standards. Tr. at 4678 (Warren).
Dr. Mikkelsen agreed that from the record Depakote and Serquel were for the treatment of a psychiatric disorder. Tr. at 3872 (Mikkelsen).
Dr. Mikkelsen testified that he would not recommend discontinuation of Depakote due to low platelet count unless the count was under 50,000.
Q. So I believe this individual might have had a count of 87,000. A. Yeah. I wouldn’t worry about that. Tr. at 3872 (Mikkelsen). A.C.J. Dr. Warren found no evidence to support Dr. Holloway’s conclusion that Dr. Farrell did not provide a DSM diagnosis, performed no diagnostic formulation or differential diagnosis, provided no outline of what medicines are targeting, did not address status of seizure disorder, did not note continuity of care with neurologist, and did not document review of vital signs and weights. Tr. at 4678, 4679 (Warren). Dr. Warren did not find a diagnostic formulation or diagnosis. However, he noted that A.C.J. was being seen by a psychiatrist outside of CHDC. He found that this was not representative of the psychiatric care at CHDC. She did not receive medication recommendations or psychiatric care from Dr. Callahan. Tr. at 4678, 4680 (Warren). A.C.J. is on a variety of medications. She has a seizure disorder and is “required code blue transportation to the emergency room if she has a seizure because of her respiratory
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distress.” She also has a vagal nerve stimulator. Tr. at 4679 (Warren). Dr. Farrell, the outside psychiatrist, provides notes on the medications and blood levels. Tr. at 4679 (Warren).
K.F. Dr. Parmley stated that K.F.’s death was not untimely. She was born with chromosome 18q deletion. “The prognosis for people born with that particular deletion is less than 24 hours.” K.F. lived “20 years and 11 months longer than she should have.” The longest living person with the same condition lived less than a year. Tr. at 5453, 5454 (Parmley). Dr. Warren did not agree with Dr. Mikkelsen’s allegation that Dr. Callahan’s notes indicated that he would prescribe psychotropic medication for individuals engaging in selfinjurious behaviors and aggression due to environmental and behavioral factors. Dr. Warren did not agree with Dr. Mikkelsen’s allegation that Dr. Callahan will prescribe psychotropic medication that he believes is contraindicated for a patient and will produce harm. Tr. at 4681, 4682 (Warren). “It’s very difficult in the more severely mentally retarded individuals to actually ascertain the various criteria to make a particular diagnosis.” Tr. at 4645 (Warren). Dr. Warren explained:
As people become more mentally retarded, they become less verbal. Many of the criteria used to make diagnoses in the DSMIV, which is the usual sort of manual we go by to try and arrive at psychiatric diagnoses, many of the criteria listed in there require verbal reports from the patient to describe their subjective mental experiences, which individuals with mental retardation even with mild levels are not able to do well. And certainly a lot of the more profoundly, severely profoundly mentally retarded individuals are nonverbal.
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Tr. at 4645, (Warren). There are behavior disorders in the developmentally disabled population that do not meet the diagnostic characteristics in the DSM-IV. Tr. at 4646 (Warren). Some diagnoses may be symptom-based. Stated by Dr. Warren:
I think best practice is to try as best you can to arrive at a working diagnosis and you would try and find clusters of symptoms that would suggest a particular diagnostic direction to work in, try and arrive at a working diagnosis even though there aren’t strict criteria available to make that definitive diagnosis.
Tr. at 4646 (Warren). Using psychopharmacology is a standard practice. Tr. at 4646 (Warren). CHDC has a reliable method for identifying medication target symptoms and clinically
justified diagnosis. Dr. Callahan explained: This occurs through psychiatric consultation to the primary care physician, discussions with psych examiners and other treatment team members. And those interactions are documented in the consultation notes, medical progress notes, the IPPS, the special staffings, and positive effects, negative effects, and the side effects are thoroughly discussed.
Tr. at 4700, 4701 (Warren). Dr. Callahan makes the diagnoses, not the nonmedical staff. [H]e shows the reasoned thinking behind his diagnoses. There is input from the multidisciplinary team regarding medicine changes, but Dr. Callahan just makes, well, makes a recommendation to the PCP who is the ultimate arbiter who decides whether to accept that or decline that.
Tr. at 4703 (Warren). The prescription of psychotropic medication is based on previous evaluation including all
available records and history and a new evaluation. Information is also gathered from caregivers. Dr. Callahan considers behavioral reports, records of any unusual symptoms, sleep issues, etcetera. “Basically look at all of the information, and then I would formulate a diagnosis.” If a psychiatric diagnosis is made, Dr. Callahan then taking all of that into consideration, looking at what I think the best diagnosis at the time is, then I would make a
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recommendation of medication based on that individual, and what, in my experience, is most likely to work best in that type of individual. Tr. at 5349 (Callahan).
Just because an individual is referred to Dr. Callahan, it does not necessarily mean that he will make a psychiatric diagnosis and prescribe medications to them. Tr. at 5380 (Callahan). Dr. Callahan would not necessarily make a diagnosis based on someone being merely agitated. Tr. at 5380 (Callahan).
Dr. Callahan does consider a medication benefit versus risk assessment before recommending a psychotropic medication. Tr. at 5349 (Callahan). Dr. Callahan’s medication benefit versus risk assessment is formulated in his head, “what any physician will do.” Tr. at 5349 (Callahan). The primary care physicians are involved in the medication benefit versus risk assessment. They are “perfectly competent to consider those issues, particularly with regard to side effects as well.” Tr. at 5373 (Callahan).
If an individual is unable to cooperate, for example, with a physical examination or lab work, a “more rapid short-term solution” may be considered. The physician may consider shortterm anxiety medications in such a situation involving the safety of the individual.
The same thing would happen in any hospital setting where you had someone becoming agitated. They would not wait to see what happened in two weeks. They would deal with the immediate situation and then proceed from there.
Tr. at 5380 (Callahan). Determining the difference between a behavior and a symptom of psychiatric diagnosis is
a matter of degree. If a behavior significantly interferes with a social and occupational function, it is a symptom. Tr. at 4647 (Warren).
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Regarding the acceptable standard of care for treating individuals with profound mental retardation and attempting to determine whether they are suffering from a psychiatric illness, Dr. Warren explained that there are general principles to follow. The review should include history and collateral information, such as family and personal history, medical history, medications, sleeping and eating patterns. “[T]ry as best you can to do a mental status examination.” Tr. at 4647, 4648 (Warren). The, after review of, for example, language abilities, speech, appearance, mood, any signs of being psychotic, any obsessions or compulsions, judgment and insight, a working diagnosis can be made. Tr. at 4648 (Warren). “[T]he treatment plan should be - - the sort of guiding principles might be that is you use a medicine to try and use the one that has fewer side effects to start with a small does, to increase doses gradually, if you can, try to change only one medicine at a time, look for side effects.” Tr. at 4648 (Warren).
After noting that Dr. Mikkelsen treats people with boarderline personality disorder with psychotropic medication when there is no indication for psychotropic medication, Dr. Kastner, stated:
What I fault Dr. Mikkelsen for is coming here and saying that because they treat people with psychotropic medications or other procedures at Conway when they feel they need to do something that they have now violated the standard of care. Dr. Mikkelsen violates that standard of care in his own practice. He should admit that here and acknowledge that the practices at Conway are no different than what he does in his own practice.
Tr. at 4029 (Kastner). As pointed out by Dr. Kastner, Mikkelsen has prescribed psychotropic medication without a psychiatric diagnosis. Tr. at 4136, 4137 (Kastner). Both Dr, Mikkelsen and Dr. Holloway agree that psychotropic medication can be used to treat behaviors even when there is no Axis I diagnosis. Tr. at 4137 (Kastner).
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Psychotropic medications are not predominantly used for maladaptive behaviors. Tr. at 4703 (Warren). Per the consensus guidelines, if a diagnosis cannot be made, “medication selection should be made based on specific behavioral symptoms, and when a specific diagnosis can be made, they should also address behavioral symptoms.” Tr. at 4683 (Warren). Dr. Warren found no evidence of CHDC prescribing medication just to suppress aberrant behavior. Tr. at 4705 (Warren).
Contrary to the implication of Plaintiff’s counsel, the integration of medication and psychosocial intervention are considered. The psych examiner is present at the interview for this reason. Tr. at 4752 (Warren).
“[A] lot of the core symptoms you might look for, especially a measurable type of symptoms, are not going to be the kikind of thing that’s going to show up in the diagnostic criteria.” Tr. at 5345 (Callahan). An example is someone with schizophrenia who is experiencing hallucinations. May of the individuals at CHDC are nonverbal and cannot articulate that they are hearing voices. Their symptoms may be observed by an increase of agitation or talking to themselves. Tr. at 5344, 5345 (Callahan).
The priority is targeting the most severe symptom. And so this – basically the psychological examiner gives me a report, I summarize what I think are the most relevant parts of the report, a, with not going into massive detail which, as you know, can be very time consuming and not terribly helpful. And, again, in that particular case, this is an individual which aggression has been part of his long-term symptoms, and so we can track that particular symptom as part of his treatment plan.
Tr. at 5337 (Callahan); Pl. Ex. 824. Callahan was treating the underlying disorder. “The situation factors may exacerbate the underlying disorder.” Tr. at 5378 (Callahan); Pl. Ex. 824.
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Dr. Mikkelsen admitted that all behaviors can be symptoms of mental illness. Tr. at 3820 (Mikkelsen). Distinguishing symptoms and behaviors, Dr. Mikkelsen stated:
Well, symptoms are usually - - would usually be more related to the psychiatric diagnosis, and, again, in the field that we are talking about here, the behaviors that you see addressed are usually aggression, SIB, agitation, and tantrum behavior that do not in and of themselves readily fit with any psychiatric diagnosis without some linkage to the psychiatric diagnosis. Tr. at 3820, 3821 (Mikkelsen).
Dr. Mikkelsen agreed that where individuals have intellectual impairment where it is difficult to access internal thoughts, you must be more thoughtful outside the official DSM guidelines. Tr. at 3817, 3818 (Mikkelsen). Dr. Mikkelsen agreed that for many individuals with profound mental retardation, the diagnosis that can be made is either autism spectrum disorder or pervasive developmental disorder. Tr. at 3826 (Mikkelsen). There are situations where rule-out diagnosis is appropriate. Tr. at 3826 (Mikkelsen).
Dr. Mikkelsen coauthored with McKenna Psychopharmacological Algorithms for Adults With Developmental Disabilities and Difficult to Diagnose. Tr. at 3818 (Mikkelsen). Per said article, Dr. Mikkelsen explained:
What I meant was that it gets more and more difficult to make a psychiatric diagnosis as intelligence decreases into the severe to profound levels for the reasons that you read in my quote. And then raising a question for future research as to whether or not there are as yet uncharted syndromes that may become apparent with regard to those more basic physiological regulatory systems that you talked about. Tr. at 3819 (Mikkelsen). `Dr. Mikkelsen agreed that the majority of residents at CHDC have severe or profound mental retardation. Tr. at 3819 (Mikkelsen). Consistent with his article Psychopharmacological
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Algorithms for Adults With Developmental Disabilities and Difficult to Diagnose, Dr. Mikkelsen agreed that it is more difficult to make a valid psychiatric diagnosis for the majority of individuals at CHDC. Tr. at 3819 (Mikkelsen).
Dr. Mikkelsen agreed that it may not always be appropriate to follow the DSMIV very strictly. Tr. at 3837 (Mikkelsen). In fact, Dr. Mikkelsen once published an article regarding behavioral phenotypes suggesting in part that you would not necessarily have to make a psychiatric diagnosis to render treatment. He abandoned the hypothesis and went back to believing that a solid psychiatric diagnosis is needed. Tr. at 3833, 3834, 3835 (Mikkelsen).
The most definitive way to make a diagnosis is to conduct an assessment of that individual. Although he found the documentation sufficient to make an opinion. Dr. Mikkelsen did not perform an individual examination of individuals. Tr. at 3832 (Mikkelsen).
When asked whether the review of diagnosis after each unsatisfactory medication trial may explain frequent changes of diagnosis, Dr Mikkelsen replied:
-- [Y]es, you can see a change in diagnosis after you’ve had a result from a medication which makes you think that there’s something else operating. Tr. at 3821 (Mikkelsen).
As Dr. Kastner noted, Mikkelsen could not provide any benchmark or standard to support his claim that obsessive-compulsive disorder was diagnosed too frequently at CHDC. Tr. 4134 (Kastner). As to the diagnosis, OCD, Dr. Kastner stated:
It's very, very difficult to make a diagnosis of obsessivecompulsive disorder because we really don't have insight into the thinking, and typically it's inferred simply from the presence of repetitive or stereotypic behavior, which is often overlapping significantly with the autism spectrum disorder diagnoses. So this is a fairly common problem. It's seen often in clinical practice. There are many, many, many hundreds of articles on he overlapping clinical presentation of the autism spectrum disorders
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and OCD, the difficulty in making the diagnosis, the appropriateness of treating those behaviors which, depending on how you look at them, could be considered symptoms of OCD. So, again, I have no concern at all regarding this type of care for this type of patient.
Tr. at 4135, 4136 (Kastner). The Food and Dradministration has approved the use of certain
drugs such as Risperdal and Abilify to treat challenging behaviors. Tr. at 4141 (Kastner).
When asked how the diagnosis of OCD is made at CHDC, Dr. Parmely explained, in
part:
All psychiatric diagnoses are based on the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders, which is published by the American Psychiatric Association, and it outlines what you are looking for to be able to diagnose an illness, and you can have to be able to meet all of those criteria.
* ** The diagnosis of OCD is based on that. . . The obsessions are the thoughts and intrusive things that are interfering with your life and making you non functional. The compulsions are the things that relative to the anxiety caused by the other.
* **
Tr. at 5451, 5452. It is difficult to diagnosis OCD in people who are cognitively impaired
because they are unable to describe the obsession. In many cases it is based on observation. Tr.
at 5452, 5453 (Parmley).
Dr. Parmley confirmed that the diagnosis of OCD does not impair the diagnosis of other
disorders. Tr. at 5453 (Parmley).
It is not unbelievable to Dr. Parmley that one-quarter of the population at CHDC has
OCD. “If they meet the criteria, yes” OCD is interfering with their daily lives. Tr. at 5472
(Parmley).
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OCD is distinct from autism. Tr. at 5472. Yet, treatments for OCD and autism are not
necessarily different. Tr. at 5473 (Parmley).
[M]any of the drugs that are used to treat OCD are also considered antidepressents, particularly of the SSRA, selective serotonin reuptake inhibitor class. And those who have been approved by the studies that they have found that they, you know, reduce that anxiety that’s in OCD. Now, an antidepressant might also be appropriate for an autistic person, child, so in which case the same drug would be treating both things, or maybe two different ones.
Tr. at 5473, 5474 (Parmley).
Dr. Mikkelsen claimed that the number of OCD diagnoses at CHDC is high, however, he
had no data to compare the OCD number with other settings. Tr. at 3829, 3830 (Mikkelsen). Dr.
Mikkelsen does not know the percentage of patients at an ICF/MR who would be expected to
have an OCD diagnosis. Tr. at 3830 (Mikkelsen).
Although Mikkelsen claims that attention deficit hyperactivity disorder (ADHD) should
not be diagnosed with a diagnosis of autism, most of the individuals at CHDC with the type of
dual diagnosis were so diagnosed before coming to CHDC. Tr. at 4145 (Kastner). Dr. Holloway
claimed there were six (6) persons with a diagnosis of ADHD and autism, but Dr. Kastner could
not find evidence to support this claim by Holloway. Tr. at 4145 (Kastner). In fact, some of
these six (6) actually had the ADHD diagnosis removed after coming to CHDC. Tr. at 4145,
4146 (Kastner).
In one study, for example, the researchers found that 55 percent of children with autism spectrum disorders fulfilled the DSM-IV criteria for ADHD. Obviously there is an empirical basis for people who believe they should treat -- diagnose and treat children with autism as though they also have ADHD. . . . What I'm telling you is that current practice is consistent with making those two diagnoses concurrently in children and treating symptoms of ADHD in children with autism. There's plenty of literature, I've abstracted 16 or so articles, and I don't see there's a need to go into
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those except again to go back to that treatment of children with autism spectrum disorders.
Tr. at 4146, 4147. (Kastner). Although Mikkelsen implies that ADHD should not be diagnosed at all in the population at CHDC, ADHD is diagnosed in this type of population all the time. Tr. at 4146 (Kastner).
Dr. Mikkelsen provided no comparative data from other facilities as to the number of ADHD diagnoses. Tr. at 3830 (Mikkelsen).
Dr. Mikkelsen admitted that there is no absolute prohibilitation of the diagnosis of ADHD in children with significant intellectual impairments. However, there is a “caution about it.” Tr. at 3840, 3841 (Mikkelsen). Dr. Mikkelsen agreed that, according to the DSM, an ADHD diagnosis cannot be made only on the presence of pervasive developmental disorder. Tr. at 3841 (Mikkelsen)
Dr. Mikkelsen conceded that there is professional literature which states that ADHD may be an appropriate diagnosis for children with a diagnosis of autism. Tr. at 3841 (Mikkelsen). Symptoms of ADHD and autism can overlap. Tr. at 3841 (Mikkelsen).
Dr. Warren found that Dr. Callahan’s notes to be detailed. “I was struck by the amount of detail I could find.” Tr. at 4650 (Warren). Dr. Kastner also found the records maintained by Dr. Callahan are appropriate, adequate, and consistent with general practice. Tr. at 4156 (Kastner). There is an approval process for the prescription of psychiatric medications. After Dr. Callahan makes a medication recommendation, the recommendation goes to the primary care physician. The primary care physician can accept or choose not to accept the recommendation. The primary care physician’s determination then goes to the IDT. If the medication is approved by the guardian, then the recommendation is sent to the Human Rights Committee (HRC). If it
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is approved by the HRC, the medication recommendation is returned to the primary care physician to write the order. Tr. at 4652, 4653 (Warren). The psychiatric medication approval process may be expedited if necessary. Medications can be ordered within four hours. Tr. at 4653 (Warren).
Typically, psychotropic medications decrease in dosage after an individual is admitted to CHDC. Tr. at 5345 (Callahan). They do so “rather dramatically both in terms of number of mediations and dosages.” Tr. at 5345 (Callahan). CHDC strives to use the smallest dosage of psychotropic medication as possible to control the prominent symptoms and allow the individual to be comfortable. However, sometimes, the individual’s symptoms require an increased dosage. Tr. at 5345, 5346 (Callahan).
CHDC has adopted the most conservative definition of polypharmacy. Polypharmacy is two psychiatric medications in use at the same time. Subcategories such as same class of medication and augmentation are also considered. Tr. at 5342 (Callahan).
Sometimes polypharmacy is inherited. Tr. at 5346 (Callahan). “People come in on multiple medications, and we just reduce the mediations as much as seems possible given the circumstances and, again, the situation.” Tr. at 5346 (Callahan).
In certain situations, polypharmacy is necessary. My inclination is that how much medication they are taking is significant, but someone banging their head on the door or the walls, scratching themselves all of the time, picking at their skin to the point of bleeding, attacking other people or trying to, is of a greater concern than exactly how much or how many medications a person is on.
Tr. at 5346 (Callahan). Polypharmacy is more the norm than not in the provision of psychiatric standard of care. Tr. at 5347 (Callahan).
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Dr. Warren found that Dr. Callahan used an appropriate selection of medications from an
appropriate range of classes of psychotropic medications. Tr. at 4705 (Warren). He prescribes a
wide variety of medications. Dr. Warren explained:
There is no correct number of drugs or classes to prescribe for a particular patient population, and you must instead individualize your treatment according to the patient. And Dr. Callahan’s practice showed such careful, individualized, logical, thoughtful reasoning with regard to his use of medicines.
Tr. at 4705 (Warren).
Contrary to Mikkelsen’s claim that Dr. Callahan used mostly only five (5) medications,
Dr. Callahan prescribed twenty (20) medications. Tr. at 4148 (Kastner). Dr. Callahan is clearly
not picking the same medications over and over again. Tr. at 4149 (Kastner). Dr. Kastner
stated:
And I think there's no evidence that my pattern or Dr. Mikkelsen's pattern or Dr. Callahan's pattern or CHDC's pattern would violate any standard of care because there's no standard pattern. There is no standard, if you will, of care in that area. And I think that's something that is clearly supported by the consensus statement of the 40 or 45 experts in the "Psychopharmacology of Persons with Mental Retardation" that was published in the mid '90s, I believe. In fact, it's only gotten worse. Every time a new drug comes out, they always look for a new indication. So it just -- we're just bombarded with new treatment options and new toys, if you will. As they come out, people just start using them. It's going to be more and more difficult to say that there could possibly be a typical pattern because there are just so many different meds, so many people using them in novel or unapproved uses. It's just going to become more and more complicated over time.
Tr. at 4149, 4150 (Kastner).
In response to Mikkelsen’s claim that Clozaril is the “gold standard,” Dr. Kastner
responded:
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I think that statement reflects Dr. Mikklesen's personal idiosyncrasies about the use of Clozaril. Clozaril is a very toxic medication as he described. Patients who are treated with Clozaril require blood tests every two weeks. And the blood test results need to be given to the pharmacy before the pharmacy will release the medication to the patient. It's that toxic. I don't use it in my practice more than a handful of times. I could see it being used more at CHDC, but it's not something that personally I would encourage or that I think is required to be done in order to meet the standard of care. You know, on the contrary, if they had high rates of use of Clozaril and Dr. Mikkelsen walked in, I could see him saying, "Oh, this is far too much Clozaril. It's a toxic medication.
Tr. at 4152 (Kastner).
Dr. Mikkelsen agreed that the use of Clozaril can be fatal if not carefully monitored.
However, it is in his opinion an effective medication. Tr. at 3808 (Mikkelsen). Dr. Mikkelsen
referred to Clozaril as the gold standard in the treatment of psychiatric conditions. Tr. at 3808
(Mikkelsen).
Dr. Mikkelsen claimed that Dr. Callahan utilized psychotropic medication that might be
harmful to the patient. Tr. at 4160 (Kastner). Dr. Kastner explained:
Well, Dr. Mikkelsen was a bit of a moving target on this one. In his report, he said that the standard is to, quote, first do no harm. I'm paraphrasing the Hippocratic oath. And that's really not the standard for the prescription of any treatment because as Dr. Mikkelsen did acknowledge two days ago, every treatment is potentially harmful, and he couldn't identify a single psychotropic or other medication treatment that wasn't potentially harmful. If we employed the standard f to first do no harm, we would not be able to prescribe any medications because we couldn't with certainty ensure that our treatments might not harm the individual. So obviously that's an impractical and unrealistic and unacceptable standard. And Dr. Mikkelsen in his testimony changed his position and then began to support the reasonable practice which is to perform some form of comparison of the potential risks and benefits of treatment versus nontreatment. And that's the standard. And I saw evidence of Dr. Callahan practicing according to that standard.
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Tr. at 4160, 4161 (Kastner). Dr. Callahan weighs potential risks against potential benefits of treatment consistent with the standard of care, and he is exercising professional judgment. Tr. at 4162 (Kastner). Dr. Kastner dod not see any medications prescribed by Dr. Callahan that were contraindicated. Tr. at 4163 (Kastner).
Dr. Warren found the use of psychotropic medications at CHDC to be appropriate, Tr. at 4703 (Warren).
Contrary to the implication of Plaintiff’s counsel, CHDC avoids frequent drug and medication dose changes. Tr. at 4751 (Warren).
Contrary to the implication of Plaintiff’s counsel, CHDC attempts to avoid using two medications in the same therapeutic class. “There are repeated notes about polypharmacy considerations at Conway.” Tr. at 4751 (Warren). Dr. Warren stated: “They’re aware of that and attempt to avoid it.” Tr. at 4752 (Warren).
Contrary to the implication of Plaintiff’s counsel, Dr. Callahan’s notes the attempted avoidance of long term use of anti-anxiety agents. Tr. at 4752 (Warren).
CHDC has an appropriate system for detecting, monitoring, reporting, responding to and documenting drug side effects. Tr. at 4700 (Warren). Side effects are “addressed by Dr. Callahan and the primary care physicians both through clinical observation, systematic laboratory testing, use of the AIMS scale, and when side effects are assessed or detected. They are appropriately addressed.” Tr. at 4700 (Warren).
As to Mikelsen’s claims as to the detection and monitoring of side effects, Dr. Kastner “found that Mikkelsen’s allegations about potential side effects were purely conjecture.” Tr. at 4170 (Kastner). Dr. Kastner reviewed the cases sampled by Dr. Mikkelsen, and those cases
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“were clear that side effects are monitored.” Tr. at 4171, 4172). Dr. Kastner found adequate side effect monitoring. Tr. at 4173 (Kastner).
Dr. Kastner stated that the AIMS test used at CHDC “is the instrument that’s the most widely used for the purposes of screening for the presence of tardive dyskinesia. Tr. at 4231 (Kastner).
CHDC utilizes a protocol which automatically orders laboratory tests pursuant to each individual’s prescriptions. It is automatic. Dr. Callahan then reviews the results. Tr. at 4701 (Warren). Dr. Warren stated that six month review for tardive dyskinesia is appropriate. Tr. at 4702 (Warren). According to Dr. Warren, “with a reasonable degee of medical certainty”, a doctor cannot identify tardive dyskinesia without seeing the patient. Tr. at 4704 (Warren).
As to Mikkelsen’s alleged concerns about the frequency of psychiatric evaluations, Dr, Kastner found that Mikkelsen did not offer any standard or practice pattern, and that Mikkelsen did no analysis of the current practice at CHDC. Tr. at 4165, 4166 (Kastner). Dr. Kastner did not see any evidence that follow up recommendations were problematic in any way. Tr. at 4165.
Dr. Kastner, contrary to Mikkelsen, did not see any evidence of a pattern of delay in implementing treatment plans in any of the clinical practices at CHDC Tr. at 4159 (Kastner).
7. THE OPINIONS OF PLAINTIFF’S PSYCHIATRIC EXPERTS ARE UNRELIABLE
The Defendants have already described how the sampling techniques of Dr. Mikkelsen and Dr. Holloway were unscientific and unrepresentative. However, there are additional reasons for rejecting or discounting the opinions of Dr. Mikkelsen and Dr. Holloway, such as their lack of qualifications, their lack of standards, inconsistencies between their testimony and their practice, their mistakes, and their misrepresentations.
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Dr. Mikkelsen Dr. Mikkelsen holds no primary care certification. Tr. at 3782 (Mikkelsen). Dr. Mikkelsen does not provide primary care services. Tr. at 3782 (Mikkelsen). Dr. Mikkelsen does not practice internal medicine. Tr. at 3783 (Mikkelsen). Dr. Mikkelseon holds no certifications in and does not practice family medicine or pediatrics. Tr. at 3783 (Mikkelsen). Dr. Mikkelsen has no hospital admitting privileges anywhere. Tr. at 3784 (Mikkelsen). Dr. Mikkelsen has no credentials as to primary care services. Tr. at 3784 (Mikkelsen). He does not bill Medicaid, Medicare, or commercial insurers for primary care services. Tr. at 3785 (Mikkelsen). Dr. Mikkelsen does not provide treatment for pneumonia. Tr. at 3785 (Mikkelsen). As the consulting medical director for The Mentor Network, Dr. Mikkelsen does not supervise all their medical services and he does not provide hands-on supervision of the medical services. Tr. at 3785, 3786 (Mikkelsen). As a result, Dr. Mikkelsen has an inadequate background to comment on general medical services. Dr. Mikkelsen has no certification pertaining to end-of-life care. Tr. at 3783 (Mikkelsen). In his practice, Dr. Mikkelsen does not supervise any practicing therapists, such as speech-language therapists, occupational therapists, or physical therapists. Tr. at 3785 (Mikkelsen). Dr, Mikkelsen has no formal training in the delivery of nursing care, occupational therapy services, or nutritional services. Tr. at 3782 (Mikkelsen). Dr. Mikkelsen is not certified in psychology and is not credentialed by any agency or entity to provide psychological services. Tr. at 3783 (Mikkelsen). In his practice, Dr. Mikkelsen does not directly supervise any psychologists. He is not credentialed to provide psychological services by any insurance company. Tr. at 3784 (Mikkelsen). He does not bill Medicaid, Medicare, or commercial
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insurers for psychology services. Tr. at 3784 (Mikkelsen). Dr. Mikkelsen has not taken any voluntary recertification in adult psychiatry since his initial certification in 1978. Tr. at 3781, 3782 (Mikkelsen). Dr. Mikkelsen has not taken any voluntary recertification in child psychiatry since his initial certification in 1981. Tr. at 3782 (Mikkelsen).
Dr. Mikkelsen was provided with a spreadsheet of individuals on psychotropic drugs at CHDC by the DOJ that he had not requested. Tr. at 3786 (Mikkelsen). Prior to his tour of CHDC, Dr. Mikkelsen received documents from the DOJ, selected by the DOJ. Tr. at 3786, 3787 (Mikkelsen).
Dr. Mikkelsen did not review CHDC residents in any proportions to the overall general population, such as by disability or intellectual level. Tr. at 3787 (Mikkelsen). There was at least one individual whom Dr. Mikkelsen reviewed only because other DOJ consultants asked him to. Tr. at 3788 (Mikkelsen). Dr. Mikkelsen agreed that his sample ended up being younger residents. Tr. at 3788, 3789 (Mikkelsen). Also, the examples Dr. Mikkelsen ended up with were residents who took more medication than the average resident at CHDC. Tr. at 3789 (Mikkelsen). The sample that Dr. Mikkelsen ended up with were individuals who had more adverse outcomes than the average individual at CHDC. Tr. at 3789 (Mikkelsen). Dr. Mikkelsen selected 76 charts “drawn from low utilizers of medications, high utilizers of medications, and then some based on the diagnostic constellation that was listed on the face sheet, probably leading more toward complex diagnostic formulations.” Tr. at 3790, 3791 (Mikkelsen).
Dr. Mikkelsen agrees that if an observer interacts with clients it may certainly affect the representativeness of the observations of the client’s behavior. Tr. at 3793, 3794 (Mikkelsen).
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Although he was doubtful that his presence was causing a disturbance, he left a residence where he was told he was upsetting some of the residents. Tr. at 3794 (Mikkelsen). Dr. Mikkelsen did not interview Dr. Eldon Schulz, a key physician providing psychiatric care to residents of CHDC Tr. at 3791 (Mikkelsen).
Dr. Mikkelsen did not conduct a psychiatric assessment of any individual at CHDC. Tr. at 3831 (Mikkelsen).
Dr. Mikkelsen agreed that a professional might be able to offer treatment without evidence of its efficacy and still not violate the standard of care. He agreed with the caveat that in the case of psychopharmacology they should have some rational hypothesis. Tr. at 3805 (Mikkelsen).
Dr. Mikkelsen agreed that you may be able to deviate from a guideline and still not violate a professional standard. Tr. at 3815 (Mikkelsen).
Dr. Mikkelsen agreed with the quote from the AACAP that stated: The practice parameters are not intended to define a standard of care, nor should they be deemed exclusive of all proper methods of care or exclusive of other legitimate methods of care directed at obtaining the desired results. The ultimate judgment regarding the care of a patient and family must be made by the clinician in light of all the clinical evidence presented by the patient and family, the diagnostic and treatment options available, and available resources.
Tr. at 3816 (Mikelsen). Speaking to his experience in Massachusetts, Dr. Mikkelsen agreed that CARF evaluators
perform rigorous evaluations. Tr. at 3797 (Mikkelsen). Speaking to his experience in Massachusetts, Dr. Mikkelsen agreed that CARF surveyors review general medication issues and whether there are overmedications at the facility. Tr. at 3797, 3798 (Mikkelsen). Massachusetts
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CARF surveyors review for individuals who are obtund, drooling, or experiencing side effects. Tr. at 3798 (Mikkelsen).
Dr. Mikkelsen agreed that you cannot implement a treatment plan without the informed consent of a legal guardian. Tr. at 3813 (Mikkelsen).
Regarding his work at MENTOR, Dr. Mikkelsen did not know whether nurse practitioners without board certification in psychiatry provide psychiatric services to MENTOR clients. Tr. at 3814 (Mikkelsen).
Dr. Mikkelsen admitted that there is no real substantial evidence, no definitive treatise on, the effectiveness of treatments for borderline personality disorder. Tr. at 3806, 3807 (Mikkelsen).
Any psychotropic medication and any medication have the potential to cause harm. Tr. at 3807 (Mikkelsen). The potential harm of medications does not preclude Dr. Mikkelsen from using them. Tr. at 3808 (Mikkelsen).
Dr. Mikkelsen agreed that specific medications might be used for novel or unapproved uses or doses which exceed the FDA approval if there is a reasonable neuropharmacological hypothesis. Tr. at 3822 (Mikkelsen).
Psychotropic drugs may be tried to treat borderline personality disorder. Tr. at 3826, 3827 (Mikkelsen).
When asked if somebody is aggressive and self-injurious and you cannot find a functional cause, whether it is acceptable to treat the individual with psychotropic medication, Dr. Mikkelsen replied:
[I]f it looks as if serious physical harm to the individual or to others is imminent, then obviously you have to act in a number of ways to keep that individual and/or other individuals safe, and that
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may include pharmacological intervention until such time as you can figure out what is going on …. Tr. at 3828 (Mikkelsen). Dr. Mikkelsen agreed that pursuant to the Expert Consensus Guideline Series Treatment of Psychiatric and Behavioral Problems in Mental Retardation, that Risperdal is the first choice of an antipsychotic medication for psychosis, self-injurious behavior, and aggressive or destructive behavior. Tr. at 3841, 3842 (Mikkelsen). Dr. Mikkelsen agreed that it sounded reasonable that valproic acid (Depakote), followed by Tegretol and its derivatives are the first choice of mood stabilizers, anticonvulsant medications for the treatment of self-injurious behavior or aggressive and destructive behavior. Tr. at 3842 (Mikkelsen). Dr. Mikkelsen agreed that an SSRI (none specifically) is the first choice of an antidepressant for depression for selfinjurious behavior, for aggression, for destructive behavior, for nonaggressive agitation, and for anxiety. Tr. at 3842, 3843 (Mikkelsen). He acknowledged that Depakote, SSRI, and Risperdol, all identified as first choice medications, constitute approximately more than 72 % of the prescriptions recommended by Dr. Callahan. Tr. at 3843 (Mikkelsen). Dr. Mikkelsen agreed that Clozapine should only be considered for persons with developmental disabilities and comorbid psychotic illness who have not improved on at least two clinical trials of more traditional antipsychotics. Tr. at 3843, 3844 (Mikkelsen). Approximately 278 individuals at CHDC receive psychotropic medication. According to Dr. Mikkelsen, more than half of those individuals receive two or more psychotropic medications. Dr. Mikkelsen agreed that approximately 121 only receive one psychotropic medication. Tr. at 3844 (Mikkelsen). Dr. Mikkelsen did not even know how many in his seven or eight case examples were taking only one psychotropic medication. Tr. at 3844 (Mikkelsen).
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Dr. Mikkelsen did not know how many people at CHDC receive two or more neuroleptics at the same time. Tr. at 3871 (Mikkelsen).
Dr. Mikkelsen agreed that even among experts, there may be different patterns of psychiatric diagnoses. Tr. at 3832 (Mikkelsen).
Dr. Mikkelsen agreed that the presence of a poor outcome or adverse outcome is not sufficient by itself to conclude that the standard of care has not been met. Tr. at 3802 (Mikkelsen).
Dr. Matson could not identify anyone at CHDC who was overmedicated. Tr. at 1240 (Matson).
Dr. Mikkelsen could not provide numbers for what he would consider an appropriate caseload for a psychiatrist at CHDC. Tr. at 3853 (Mikkelsen).
Dr. Mikkelsen agreed that guardian consent is needed to treat a patient. Tr. at 3862 (Mikkelsen).
Dr. Mikkelsen agreed that the ICF/MR regulations and CARF survey guideline are accepted professional standards. Tr. at 3794 (Mikkelsen).
Dr. Holloway The opinions of Dr. Holloway should be rejected or discounted because she failed to conduct a scientifically reliable study, she has limited experience with ICF/MR’s, she has revealed inconsistencies between her testimony and her practice, and she made many errors in her review. Holloway admits that she did not use any statistical procedure to establish the presence of a pattern in this case. Tr. at 2622 (Holloway). Holloway does not know how many charts she
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reviewed of children younger than 18 years old. Tr. at 2623 (Holloway). Holloway testified that she chose charts with different diagnoses on the diagnostic spectrum, rather than trying to get a statistically valid sample. So she may have evaluated an individual with a certain diagnosis only because that individual has that diagnosis, even if he was the only one at the center with that diagnosis. Tr. at 2623 (Holloway).
Other than the facilities that she works with in connection to settlement agreements for the DOJ, Holloway has never worked in an ICF/MR facility to provide psychiatric care. Tr. at 2628 (Holloway).
The facilities that Holloway provides consulting to both use IQ scores and adaptive skill scores and combine them to establish a diagnosis of the intellectual disability, Tr. at 2632 (Holloway).
Holloway admitted that it is appropriate for CHDC to use the DM-ID as well as the DSM-IV-T. Tr. at 2633 (Holloway). The DM-ID was created because there are not enough adaptations in the DSM-IV-TR for individuals to make sure diagnostics would be appropriate for the developmentally disabled population. Tr. at 2634 (Holloway).
Holloway admits that she did not use the ICF/MR standard at all in her review of CHDC. Tr. at 2634 (Holloway). Holloway was under the mistaken belief that peer reviews were required under the ICF/MR regulations. Tr. at 2634 (Holloway).
Holloway inappropriately uses policy statements as a standard for care to support her opinions even though she is aware that they specifically state in the body of the policy statement that they are not intended to define a standard of care. Tr. at 2634 (Holloway). Holloway admits that the policy statement for JCAHO says it is intended for use in hospital settings and for hospital patients. Tr. at 2636 (Holloway).
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She admits that the policy statements she used are really JCAHO standards and should not be applied when reviewing a facility like CHDC. Tr. at 2636 (Holloway).
Holloway agreed that it is difficult to arrive at an Axis I diagnosis when a patient is nonverbal, like many of the residents at CHDC, and a provisional or rule out diagnosis would be appropriate. Tr. at 2637,2638 (Holloway). Rule-out diagnosis are common when a resident is new to the facility or has changed to a new living area, or someone who has a diagnosis but is presenting with new issues. Tr. at 2637 (Holloway).
Pinecrest, the facility where Holloway provides consulting services, admits adolescents. Tr. at 2638 (Holloway).
Dr. Holloway admits to using polypharmacy, chemical restraints and off-label drugs in her practice. Tr. at 2650-51 (Holloway).
The ICF/MR guidelines only require that the Interdisciplinary Team complete their evaluation within 30 days of the individual’s admission, which is not to say that the psychiatric evaluation must be done within that timeframe. Tr. at 2652 (Holloway).
Dr. Holloway did not do a comparative assessment to see how many people at CHDC had a delay in their initial assessment at CHDC. Tr. at 2653 (Holloway).
Dr. Holloway alleged that CHDC was deficient because T.M. did not have a psychiatric assessment done as quickly as she thought was necessary, however, she does not even know if T.M. was actually admitted, or if he was on a respite status. Tr. at 2653 (Holloway). Dr. Holloway could not name any standard to support her claim that individual placed at CHDC should receive expert services within any certain time line, similar to those who are hospitalized. Tr. at 2653 (Holloway).
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Dr. Holloway admits that there is no standard that requires peer reviewing for psychiatric services at CHDC. Tr. at 2654 (Holloway). She also admits that there is no standard that requires a certain screening or assessment methods to be used at CHDC. Tr. at 2654 (Holloway). And she agrees that there is no standard that requires a face to face evaluation by a psychiatrist every time an individual is experiencing difficulties that have resulted in restrictive measures such as the use of physical restraints or psychotropic medication. Tr. at 2655 (Holloway) There is also no standard that requires a face to face evaluation when an individual has been prescribed medication changes or when they receive a diagnostic workup. Tr. at 2655 (Holloway).
Dr. Holloway agrees that the use of psychotropic medication to treat or suppress aberrant behavior is not always improper. Tr. at 2658 (Holloway).
Dr. Holloway could not specifically identify anyone at CHDC who was receiving a psychotropic medication but who did not have an Axis I diagnosis. Tr. at 2658 (Holloway).
There is no literature that requires that the percentage of people on psychotropic medications in a facility must be under a certain amount. Tr. at 2660 (Holloway).
Resident W.B. had stat medication on 15 occasions over a 2-year period and represented 14% of all stat medications for the entire facility during the time period which Dr. Holloway examined CHDC. The remaining 37 individuals who had stat medication had only a total of 96 instances of stat medication which averages out to 3 uses per individual over a 2-year period. Tr. at 2661 (Holloway). Dr. Holloway had no comparative benchmarks to tell the Court whether this was a high or low rate compared to other ICF/MR’s. Tr. at 2661(Holloway).
The rate of tardive dyskinesia at CHDC is well below the rate published in the literature as to what you would expect for this population. Tr. at 2662 (Holloway).
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Dr. Holloway thinks that Dr. Callahan or the psychiatrist at CHDC must be the “main player” in decisions affecting a resident’s care, it should not be a team effort or team decision. Tr. at 2664 (Holloway). This is contrary to the IDT process required by the ICF/MR regations.
Dr. Holloway agrees that if a treating physician or consulting psychiatrist recommends a drug for a resident at CHDC, and the guardian does not agree with the use of that particular drug, CHDC can not administer that drug and neither would any other doctor in the country, the guardian must be in agreement. Tr. at 2666 (Holloway).
Dr. Holloway did not meet with or speak to Dr. Reid or Dr. Farrell who both provide psychiatric services to individuals at CHDC. Tr. at 2668 (Holloway).
Dr. Holloway agrees that if someone is seen by an outside psychiatrist, then the outside psychiatrist would be responsible for managing that individual’s care. Tr. at 2676 (Holloway).
Dr. Holloway refused tp consider whether T.M. was afraid of Dr. Holloway and was trying to get away from her when staff were helping him to leave the pool facility. T.M. fell in the pool while he was attempting to put distance between himself and Dr. Holloway. Tr. at 2681 (Holloway). Dr. Holloway did not do any follow-up review of records over the next few days to see if TM was exhibiting side effects or if he was really afraid of her at the pool. Tr. at 2681 (Holloway).
Dr. Holloway said that she could attest with medical certainty that B.H. is suffering from tardive dyskenisia, but she did not conduct a clinical observation of B.H., has never met him and does not know his AIMS test result scores. Tr. at 2687-91 (Holloway).
Dr. Holloway confirmed that some of the children who live at the facility where Dr. Holloway provides consultation services, have been placed there because their psychiatric illness
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has caused them to harm themselves or others. Those children are provided with education
classes on the campus of the facility. Tr. at 2700 (Holloway).
Holloway agrees that parent and guardians have the right to chose where their children
receive their care and to decide what is in the best interest of the child. Tr. at 2643 (Holloway).
8. PLAINTIFF’S EXPERT, DR. MATSON, A PSYCHOLOGIST, IS NOT QUALIFIED TO RENDER OPINIONS AND HIS OPINIONS LACK MERIT AS TO PSYCHIATRIC AND MEDICAL SERVICES
Dr. Matson is not a physician and he has no credentials to diagnose psychiatric illness or
he use of psychotropic medications. Tr. at 4242 (Kastner).
Dr. Kastner describes how Dr. Matson has a certain hostility towards psychiatric or
biological causes of behavior. Tr. at 4252-4255 (Kastner). In fact, Dr. Matson’s views are not
even consistent with the testimony of other DOJ experts, Mikkelsen, and Holloway. Tr. at 4255
(Kastner). As stated by Dr. Kastner:
Well, if his recommendations were to rise to the level of treating what I would consider to be primarily psychiatric conditions with an operant or behavioral approach, I think that would violate the standard of care. I think Dr. Matson probably would need to exercise some caution in the rigorousness of his opinions, that they need to take into account that not all behaviors have a function and that functional analysis and behavioral interventions may not always be clinically appropriate.
So, for example, an individual who is hallucinating should not be treated primarily with a behavior approach. Personally, I would not recommend the use of a behavioral approach for the treatment of anxiety disorders in persons with mental retardation and developmental disabilities. I believe Dr. Matson would disagree, and that's okay. It's his opinion. I have a different opinion. We come from different theoretical perspectives. But again, I don't believe Dr. Matson can adequately represent the standard of care without taking into account the opinions of other disciplines and other reasonably qualified professionals.
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Tr. at 4259 (Kastner). Dr. Kastner is very pleased with the integration of psychology and medicine at CHDC.
Tr. at 4260 (Kastner). The data collected by the psych examiners is extremely useful to the consulting psychiatrist, Dr. Callahan. Tr. at 4260 (Kastner). The conduct of the psych examiners and Dr. Callahan is absolutely consistent with the standard of care. Tr. at 4260 (Kastner).
Dr. Kastner confirmed that the psychiatric assessments at CHDC contained a core symptoms diagnostic formulation and a rationale for the use of psychotropic medications. Tr. at 4265 (Kastner).
Dr. Kastner found that the CHDC psychiatrists and professionals use an appropriate assessment and diagnostic procedure, and do not need to use standardized rating scales. Tr. at 4269 (Kastner).
Dr. Kastner stated that psychometric instruments, or data collection tools, are not a required component of the psychiatric diagnostic process. Tr. at 4244 (Kastner). Data collection tools and standardized instruments are not the standard of care. Tr. at 4245 (Kastner).
Dr, Matson alleged excessive use of psychotropic medication without identifying an appropriate benchmark to support that claim. Tr. at 4268 (Kastner).
Dr. Matson cited an article that claimed the rate of psychotropic medication use in Oklahoma was about 22 percent. Tr. at 3979 (Kastner). Actually, that article referred to psychotropic medication use at Hisson Center and did not include the use of antiepileptic medications, which would have put the rate over 50 percent. Tr. at 3979, 3980 (Kastner). This rate is comparable to the 45 to 50 percent rate at CHDC. Tr. at 3979, 3980 (Kastner). Dr. Matson did not appropriately represent that benchmark. Tr. at 3980 (Kastner).
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Contrary to the opinions of Dr. Matson, Dr. Kastner noted at there is no specific standard for tapering psychotropic medications. Tr. 4264 (Kastner). The tapering practices at CHDC are in compliance with accepted professional standards. Tr. at 4264 (Kastner).
Dr. Kastner found that Matson’s concerns regarding psychotropic medication use did not have any merit. Tr. at 4263 (Kastner).
Dr. Matson agreed that he would not say that in no case where there is an Axis I diagnosis of obsessive compulsive disorder that the individual should not be treated with psychotropics. Tr. at 1235, 1236 (Matson).
Dr. Matson agreed that it could be appropriate to use a psychotropic medication or other medications if you are unable to identify behavioral causes. Tr. at 1236 (Matson).
Dr. Matson agreed that off label drug practice is acceptable in some instances. The FDA will approve a drug for a certain use, for example, a psychotropic drug, an antipsychotic drug would be approved for psychosis. It might also be approved for other purposes like manic depressive disorder or something like that, but there might be other situations where there isn’t another treatment alternative where it hasn’t been approved yet by the FDA but where the prescribing person may make a determination that it might be effective for that individual. It might be for aggression, for example, if that’s what we’re talking about, and that would be called an off label prescription.
Tr. at 1238, 1239 (Matson). Matson, admitted that some individuals at CHDC are on psychotropic drugs to control
seizures. Tr. at 1239 (Matson). When Dr. Matson compiled his data on psychotropic drugs, he did not completely factor out of the data the use of psychotropics for seizures. Tr. at 1239 (Matson).
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Regarding T.G. and her use of Risperadol, Dr. Matson agreed that some professionals think it is a good thing to prescribe Risperadol. Tr. at 1239, 1240 (Matson).
Dr. Matson was not referring to anyone specifically at CHDC as having suffered physical harm or irreversible side effects due to psychotropic drugs. Tr. at 1242, 1243 (Matson). Dr. Matson is not a psychiatrist. He agreed that he would leave it up to a psychiatrist to determine any specific harm from a psychotropic drug. Tr. at 1242, 1243 (Matson).
Dr. Matson did not know how many people or committees have to approve the use of psychotropic medications before a CHDC starts the medication regimen. Tr. at 1243 (Matson).
Dr. Matson did not know of anyone at CHDC who is on psychotropic medication who is not diagnosed with a psychiatric disorder. Tr. at 1244 (Matson).
Dr. Matson did not evaluate any CHDC residents to determine whether they could be taken off their psychotropic medication. “No. Again, that would be for the psychiatrist to do.” Dr. Matson agreed that he is not a psychiatrist. Tr. at 1244, 1242, 1243 (Matson).
Dr. Matson agreed that the topic of psychotropic medications having limited empirical support as treatment for self-injurious behavior is contentious, that some professionals strongly believe that it is useful for self-injurious behavior. Tr. at 1244, 1245 (Matson).
Dr. Matson agreed that sometimes when an individual is tapered from medication, they can experience a reemergence or significantly increased incidence of problem behavior. Tr. at 1246 (Matson).
He agreed that guardian consent is required for a psychotropic medication taper. Tr. at 1246, 1247 (Matson).
Dr. Matson did not know the statewide rate of psychotropic drug use for persons with developmental disabilities in Arkansas. Tr. at 1268 (Matson).
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B. CHDC PSYCHOLOGY DEPARTMENT CHDC’s psychological examiners are licensed and regulated by the State of Arkansas to practice their profession at CHDC. Ark. Code § 17-97-101 et seq., Tr. at 5876 (Walsh). One of CHDC’s psychological examiners, Ms. Glenn, had first had experience with the state’s regulation of psychological examiners. Tr. at 6688 (Glenn). As president of the Arkansas Association of Masters in Psychology, Ms. Glenn advocated for an independent licensure for master’s level psychologists, which would allow those psychologists to practice without a supervising clinician. Tr. at 6688 (Glenn). In 2007, while president of the AAMP, Ms. Glenn coauthored a bill that was enacted in Arkansas in 2007. Tr. at 6688 (Glenn). That statute established the independent practice of a master’s level psychologists in Arkansas. Ark. Code § 17-97-303, Tr. at 6688 (Glenn). The statute requires master’s level psychologists to go through 3,000 hours of supervised practice after their initial licensure along with a 600 internship supervised by a board certified psychologist, after which they can practice without a clinical supervisor. Ark. Code § 17-97-303, Tr. at 6688 (Glenn). All CHDC psychological examiners are also qualified to practice at CHDC pursuant to ICF/MR regulation. 42 CFR § 483.430(b)(5)(v). Tr. at 4246 (Kastner). CHDC psychological examiners are also Qualified Mental Retardation Professionals, per CMS regulations. 42 CFR § 483.430(a), Tr. at 5875 (Walsh). Six CHDC psychological examiners are permitted to practice independently, without a clinical supervisor. Ark. Code § 17-97-303, Tr. at 5876 (Walsh). Only four CHDC psychological examiners are required by state law to practice under the clinical supervision of CHDC’s Chief of Psychology, Dr. Reddig. Ark. Code § 17-97-303, Tr. at 2099, 5876 (Walsh).
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Although some of CHDC’s psychological examiners are licensed independently, Dr. Reddig still serves as their clinical supervisor. Tr. at 6690 (Glenn). In that position, Dr. Reddig discusses the psychological examiners caseloads with them, reviews their behavior programs, and assists them with various other issues. Tr. at 6690 (Glenn). Some psychological examiners at CHDC have been licensed for over 20 years. Tr. at 2081, 6550 (Reddig, Priest). At least seven of CHDC’s psychological examiners have worked in settings other than CHDC. Tr. at 2109 (Reddig). Some CHDC psychological examiners have published in their field, including topics such as anxiety and depression in persons with mental retardation. Tr. at 6683 (Glenn). All CHDC psychological examiners read literature in their field, go to workshops, follow trends in their field, and vet whatever they can based on the needs of their practice. Tr. at 5891 (Walsh). CHDC’s psychological examiners meet at least twice a month at the psychology department’s staff meeting, which includes Dr. Reddig, and they also have monthly quality circle meetings where they discuss issues that are occurring at the center or with individual clients. Tr. at 6690 (Glenn).
Dr. Reddig is the chief psychologist at CHDC and has served in that position since 2004. Tr. at 1936, 1937 (Reddig). It is undisputed that Dr. Reddig is qualified to clinically supervise CHDC’s psychological examiners. Tr. at 1187 (Matson). He received his doctorate in counselor education in 1993 and has published in his field. Tr. at 1939, 1941-42 (Reddig). Dr. Reddig is the clinical supervisor for all ten masters level psychological examiners at CHDC. Tr. at 1936, 1786, 6690 (Reddig, Adams, Glenn). Dr. Reddig has worked for the Arkansas Division of Developmentally Disabled for sixteen years during which, he has worked throughout the state, consulting with community providers, public schools, and individuals receiving waiver services, frequently conducting and overseeing functional assessments for individuals. Tr. at 2073
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(Reddig). For instance, after hurricanes Katrina and Rita, Dr. Reddig worked on an emergency basis at Fort Chaffee to provide services to individuals with mental health issues and developmental disabilities. Tr. at 2074 (Reddig). From 1988 to 1993, Dr. Reddig also served on the Arkansas State Licensing Board. Tr. at 2074 (Reddig). Dr. Reddig is highly knowledgeable of licensing requirements for psychologists in the State of Arkansas as well as the limitations of the psychological examiners at CHDC. Tr. at 2075 (Reddig).
The caseloads of CHDC psychological examiners are all appropriate. Tr. at 4247 (Kastner), 5884 (Walsh). Plaintiff produced no evidence at trial that any CHDC resident has been negatively impacted because the CHDC Psychology Department was understaffed. In fact, Plaintiff has produced no evidence that the CHDC Psychology Department is understaffed. Plaintiff’s expert’s, Dr. Matson’s, suggestion to hire additional psychologists at CHDC is unrealistic. Tr. at 5884 (Walsh). Dr. Matson’s proposed additions to CHDC’s Psychology Department would make CHDC the best staffed psychology program in the country. Tr. at 5884 (Walsh). The average number of individuals per psychological examiner at CHDC is the same caseload that Defendants’ expert, Dr. Walsh, had as a practitioner at and ICF/MR. Tr. at 5884 (Walsh).
Each resident at CHDC is assigned to a psychological examiner even if the individual does not have a psychiatric diagnosis or behavior program. Tr. at 6555 (Priest). Therefore, some caseloads may be larger than others because some CHDC residents do not use as many psychology services as others. Tr. at 6555 (Priest). Some CHDC residents do not require any direct attention of a psychological examiner, which allows the CHDC psychology department to adjust caseloads to ensure residents who need the attention of psychological examiners get it. Tr. at 5884-85 (Walsh). The psychological examiners’ caseloads at CHDC range from 22 to 60
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residents because, for example, the resident of the Willow units do not have as many psychological needs relative to other CHDC residents. Tr. at 5885 (Walsh). Because only 428 CHDC residents have some type of behavior plan, the average active caseload for psychological examiners is between 38 and 39 residents. Tr. at 5885 (Walsh). CHDC psychological examiners’ caseloads are not onerous. Tr. at 4247 (Kastner), 5885 (Walsh).
9. PLAINTIFF’S EXPERTS’ FLAWED ANALYSES Plaintiff’s experts’ methodology was nonscientific and some of Plaintiff’s experts’ allegations were gratuitous and unreasoned. Tr. at 4241-42 (Kastner), 5807, 5931 (Walsh). For example, Plaintiff’s expert, Dr. Matson’s, concluded that the CHDC Quick Reference Guides should either contain more information or not be used at all, and neither position has a basis in professional standards. Tr. at 5903-04 (Walsh). Plaintiff’s psychology experts did not collect or organize data to support any of their allegations and looked at no outcomes before forming their opinions. Tr. at 5808, 5931 (Walsh). As Plaintiff’s medical expert Dr. Mikkelsen testified, it is the outcomes that really let you judge whether or not the standard of care is being met. Tr. at 3799 (Mikkelsen). Plaintiff’s experts, Drs. Matson and Manikam, looked almost exclusively at processes at CHDC, rather than outcomes. Tr. at 5809 (Walsh). Plaintiff’s experts also unfairly placed added emphasis on treatment fidelity measures in CHDC’s behavior plans because of their narrow academic backgrounds. Tr. at 5825 (Walsh). Despite Plaintiff’s expert, Dr. Matson’s, academic title, his review of records and data from CHDC was beyond careless, and demonstrated no intent to be scientific. Tr. at 4241 (Kastner), 5893 (Walsh). Dr. Matson, showed no intent to be objective in his review of CHDC. Tr. at 5893 (Walsh). Dr. Matson did not review a sample of CHDC residents and did not even finish reviewing the records that he started to review. Tr. at 5894 (Walsh). Dr. Matson did not
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even comply with the general standards that he claims should exist for data collection at CHDC. Tr. at 4242 (Kastner). Instead, Dr. Matson looked narrowly at CHDC to find things to criticize. Tr. at 5894 (Walsh).
Among other things, Plaintiff’s expert, Dr. Matson, cited a study of self-injurious behavior to suggest that CHDC’s rate of self-injurious behavior was unusually high, but that study is not a useful comparison because there are studies that are much more representative of the population at CHDC. Tr. at 5917 (Walsh). Dr. Matson’s reliance on that study was disingenuous because the abstract of the study cited by Dr. Matson expressly made clear that the rates of self-injurious behavior are much lower in community settings compared to large ICF/MR settings, given the types of people that are served in the respective settings. Tr. at 5917 (Walsh). Dr. Matson’s representation of a study of aggressive behavior was even more misleading because he compared CHDC to what he claimed was a statistic of 9.8% for physical aggression, but that study actually said that the 9.8% percent figure was for sexually aggressive behavior, not generally aggressive behavior. Tr. at 5918 (Walsh). In that same article, the rate for physical aggression is actually identified as 24.4%. Tr. at 5918 (Walsh).
Rather than selecting a representative sample of CHDC residents, at his deposition, Dr. Matson testified that the individuals he reviewed were selected at random, so he assumed they were representative. Tr. at 5895 (Walsh). At trial, Dr. Matson did not even believe he drew a representative sample of CHDC residents for his review. Tr. at 1206-09 (Matson). He also claimed to not know whether there were incorrect name transcriptions on his lists, although that fact was noted in Defendants’ expert report months before trial. Tr. at 1206-1209 (Matson). Plaintiff’s expert, Dr. Matson, was utterly careless in his review of CHDC. Tr. at 5900 (Walsh). Dr. Matson can not make statements about the entire CHDC population because he did not take
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any sort of reasonable scientific approach in his work. Tr. at 5902 (Walsh). Dr. Matson’s sample was not representative of CHDC with respect to gender, clinical team membership, level of intellectual disability, ambulation status, fragile health, aggressive, destructive, or self-injurious behaviors in behavior plans. Tr. at 5895 (Walsh). In some instances, Dr. Matson’s sample was nearly the reverse of the actual CHDC population. Tr. at 5895 (Walsh). Dr. Matson oversampled people with severe behavioral problems and severe disabilities, but undersampled residents with profound disabilities. Tr. at 5895 (Walsh). Any conclusions drawn from Dr. Matson’s sample cannot be applied to the rest of the CHDC population. Tr. at 5896 (Walsh). Dr. Matson appeared to observe instances on his tours and then go to the records to support his opinions, which is the reverse of the way objective research is done. Tr. at 5894 (Walsh).
There were other fundamental flaws in the way that Dr. Matson approached his review of CHDC. Tr. at 5902 (Walsh). For example, Dr. Matson misapprehended how behavior plans and restraints are used at CHDC. Tr. at 5901 (Walsh). He did not use the data available to him from CHDC in any quantifiable way. Tr. at 5902 (Walsh). And he did not generate data from his review of CHDC. Tr. at 5902 (Walsh). Although Dr. Matson claimed he reviewed all 510 Quick Reference Guides at CHDC, he provided no critical content for having supposedly reviewed so much material. Tr. at 5903 (Walsh). Dr. Matson also failed to specify which type of behavior plans he reviewed for which CHDC residents. Tr. at 5896 (Walsh). Dr. Matson created charts in his report that were not constructed in any sensible way. Tr. at 5897 (Walsh). Dr. Matson did not tabulate information he claimed to have gleaned from CHDC behavior plans in any way that made sense and he did not identify any data coming out of them. Tr. at 5897 (Walsh). Dr. Matson’s opinions were all unsupported or supported only by a biased selection of CHDC residents. Tr. at 5897 (Walsh). Dr. Matson tended to look for problems at CHDC and then
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gravitate toward them to support his opinions. Tr. at 5897 (Walsh). As evidence of his sloppy research, in one of Dr. Matson’s charts he identified one of CHDC’s psychological examiners as one of the residents, leading one to lack confidence in Dr. Matson’s analysis. Tr. at 5897 (Walsh). In another of Dr. Matson’s charts he incorrectly identified the first names of at least six or seven CHDC residents, further leading one to lack confidence in Dr. Matson’s analysis. Tr. at 5898 (Walsh). At a minimum, Dr. Matson’s, lack of methodology affected his findings. Tr. at 5902 (Walsh).
Further evidence of Dr. Matson’s limited credibility was revealed when he confused microcephaly with hydrocephaly and colloquially identified the former as “water on the brain.” Tr. at 5883 (Walsh). Microcephaly is a person with a small circumference of the head. Tr. at 5884 (Walsh).
Of critical importance, Dr. Matson also confused functional behavior assessment with the overall comprehensive functional assessment required by the ICF/MR regulations. Tr. at 6091 (Walsh). The ICF/MR standards do not include functional behavior assessment, but rather include an overall comprehensive functional assessment that is interdisciplinary in nature, done within 30 days of admission, and then annually updated thereafter, which is quite different than a functional behavior assessment. Tr. at 6091 (Walsh). Dr. Matson’s emphasis on cognitive testing seems to have come from a similar misunderstanding of the ICF/MR regulations. Tr. 5876-77 (Walsh). Cognitive assessment is not a big part of what psychological examiners do at CHDC because all of the residents at CHDC had to have already had cognitive assessments by a psychologist in order to have been admitted to CHDC. Tr. at 5877 (Walsh).
Dr. Matson’s incomplete review of records also directly impacted his findings. Dr. Matson erroneously indicated that the behavior plans for TH had no behavior function identified
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and no replacement behaviors identified. Tr. at 5899 (Walsh). TH’s behavior plans clearly identify behavior functions and replacement behaviors, contrary to Dr. Matson’s claim. Tr. at 5899 (Walsh). Dr. Matson did an incomplete or inaccurate review of TH’s records, leading one to conclude that Dr. Matson’s overall conclusions are not trustworthy. Tr. at 5899 (Walsh). In the case of ZS, Dr. Matson erroneously indicated that ZS’s behavior plans had no replacement behaviors, leading one to conclude that Dr. Matson’s overall conclusions are not trustworthy. Tr. at 5900 (Walsh). ZS’s behavior plans identified multiple replacement behaviors, including playing with toys, building things, and taking objects apart, contrary to Dr. Matson’s claim. Tr. at 5900 (Walsh). In the case of ACJ, Dr. Matson erroneously indicated that ACJ’s behavior plans had no replacement behaviors, further leading one to conclude that Dr. Matson’s overall conclusions are not trustworthy. Tr. at 5900 (Walsh). ACJ’s behavior plans specifically stated “appropriate behaviors for ACJ include remaining calm,” and then list a number of other behaviors, contrary to Plaintiff’s expert, Dr. Matson’s claim. Tr. at 5900 (Walsh).
Similarly, Plaintiff’s expert, Dr. Manikam, was not a reliable witness. Dr. Manikam reviewed IPPs for only 20 CHDC residents, which is a 3.9% sample, too small to draw any conclusions. Tr. at 5923 (Walsh). Further, all of the information Plaintiff’s expert, Dr. Manikam, recommended to be included in CHDC’s IPPs is already in those IPPs. Tr. at 5923-25 (Walsh). Dr. Manikam falsely indicated in his report that he reviewed 74 behavior intervention plans. Tr. at 5920 (Walsh). Adding up the number of documents that Dr. Manikam loosely described as plans and claimed he reviewed, there are only 54 documents, not 74, as he indicated. Tr. at 5920 (Walsh). The plans that Dr. Manikam claimed to have reviewed represented only 46 CHDC residents. Tr. at 5920 (Walsh). Dr. Manikam also inconsistently stated in his report that there were 41 types of restraints used at CHDC and then later indicated that there were only 13 types
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of restraints. Tr. at 5918 (Walsh). Based on his testimony, Dr. Manikam also seems to not understand what the ICF/MR regulation permit relative to programmed use of restraints. Tr. at 5855 (Walsh).
The positive behavior support movement advocated by Dr. Manikam is described by leading behavioral psychologists as “a utopian delusion.” Tr. at 5922 (Walsh). That movement, for which Dr. Manikam seems to advocate, is not a standard in the field of psychology. Tr. at 5922, 5923 (Walsh). Plaintiff’s own expert, Dr. Matson, acknowledged that there is disagreement within the field of behavioral psychology as to the validity of the positive behavior support movement advocated for by Dr. Manikam. Tr. at 5922 (Walsh). Some leading behavioral psychologists have concluded that the positive behavior support movement for which Dr. Manikam seems to advocate has done damage to the field of applied behavior analysis. Tr. at 5923 (Walsh).
a. EVIDENCE BASED PRACTICE Evidence-based practice in psychology is a new theory of practice. Tr. at 4266 (Kastner), 5887 (Walsh). The American Psychological Association adopted a resolution in 2005 to start looking at evidence-based practice, so it is disingenuous to criticize CHDC in 2009 for not having evidence-based practice in their psychology department. Tr. at 5887 (Walsh). There is currently no evidence base, or only a very limited evidence base, on which to base a practice like the psychology department at CHDC, so CHDC cannot be expected to employ evidence-based practice in the way Plaintiff’s expert has suggested. Tr. at 5887-88 (Walsh). Contemporary academic literature maintains that psychologists structure their practices based on their experience, not on evidence-based practice because there has been no evidencebased practice that has been properly vetted in the field of psychology and developmental
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disabilities. Tr. at 5889 (Walsh). Evidence-based practice for psychological examiners at CHDC would not involve a review of literature and attempt to directly apply that material to their practices. Tr. at 5889 (Walsh). There is no evidence-based practice standard that CHDC psychological examiners could go to and say that is how they are going to carry out their practice. Tr. at 5889 (Walsh).
Plaintiff’s expert, Dr. Matson, cited no evidence-based standards in his report or testimony. Tr. at 5890 (Walsh). Dr. Matson’s suggestion that CHDC psychological examiners should read the evidence from academic literature and attempt to incorporate it as they see fit is naïve and that suggestion shows an absence of empirical evaluation as to whether that would work or achieve positive outcomes. Tr. at 5890 (Walsh). Reliance on journal articles is not an appropriate way to describe evidence-based practice as a standard. Tr. at 4266 (Kastner), 6060 (Walsh). Most peer-reviewed academic publications do not contain any treatment fidelity measures, so it is not likely that any day-to-day programs have treatment fidelity measures and none of Plaintiff’s witnesses offered any evidence of such programs. Tr. at 5893 (Walsh).
b. BEHAVIOR INTERVENTION COMMITTEE IS NOT NECESSARY AT CHDC
At trial, Plaintiff’s, expert Dr. Matson, suggested that CHDC should have a “Behavior Intervention Committee,” and although some states’ do require a specific committee with that name, that type of committee is not required by Arkansas law, CMS regulations, or any professional standards. Tr. at 1189-90, 1270-71, 4207, 5850. Nevertheless, the CHDC psychology department peer review committee serves the same function as the behavior intervention committee recommended by plaintiff’s expert, Dr. Matson. Tr. at 5851.
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The CHDC psychology department peer review committee serves as a professional review of the behavior plans and brings all of the psychological examiners together as a collegial group to discuss ideas and proposals. Tr. at 5852. The CHDC psychology department peer review committee is governed by policy. Defendants’ Exhibit 910, Tr. at 5850, 5851. The committee meets on a regular basis, maintains meeting minutes, and conducts regular presentations on a monthly basis. Tr. at 5851. Since its inception, the committee has reviewed CHDC residents’ cases involving self-injurious behavior, aggression, pica, feces smearing, tantrums, refusal, and many other behaviors. Tr. at 5852. The CHDC psychology department peer review committee exceeds professional standards and meets any substantive suggestion by Plaintiff’s expert, Dr. Matson. Tr. at 5850.
c. PSYCHOLOGICAL DIAGNOSES - TREATING PROFESSIONAL’S RELIANCE ON DIAGNOSTIC MANUALS
The only diagnosis in the DSM-IV-TR that involves any kind of psychological test is mental retardation. Tr. at 1219, 1220, 2035 (Matson, Reddig). Scales and tests are not necessary in making any other diagnosis from the DSM-IV-TR. Tr. at 2040 (Reddig). All other diagnoses in the DSM-IV-TR are based on how people behave and what people report, so using the DSMIV-TR for diagnosing people with severe and profound developmental disabilities can be extremely difficult. 2035, 5882 (Reddig, Walsh). People with severe and profound developmental disabilities express themselves in very different ways than a practitioner finds in the DSM-IV-TR because the DSM-IV-TR relies on what patients report. Tr. at 2033 (Reddig). The vast majority of CHDC residents can not report their symptoms and do not express themselves in ways typically identified in the DSM-IV-TR. Tr. at 2033 (Reddig).
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Plaintiff’s expert, Dr. Matson, agreed that it is not always possible to get a clear diagnosis from the DSM-IV-TR. Tr. at 1223 (Matson). Dr. Matson agreed that diagnosing some behaviors does not require a standardized mental health assessment and could be discerned through observation. Tr. at 1237 (Matson). In fact, Dr. Matson has reported in publications that the best way to determine if a psychiatric diagnosis exists for someone with mental retardation is through observation. Tr. at 6683 (Glenn). Although he did not necessarily agree with it, Dr. Matson acknowledged that there are peer reviewed publications that have concluded that the DSM-IVTR’s layout of disorders does not work for patients with developmental disabilities. Tr. 12201222 (Matson). Because some professionals maintain that the DSM-IV-TR does not sufficiently diagnose individuals with intellectual and developmental disabilities, efforts have been made to develop alternative diagnostic systems for use with those patients. Tr. at 1222, 1223 (Matson). The Diagnostic Manual for People with Intellectual Disabilities (“DM-ID”) is an attempt to adapt the Diagnostic and Statistical Manual categories to people with developmental disabilities. Tr. at 5882 (Walsh). When attempting to apply it to the severely or profoundly disabled, however, a practitioner has the same problems using the DM-ID that he has using the DSM-IVTR because the only adjustments in diagnostic criteria in the DM-ID have been made vis-a-vis mildly and moderately disabled individuals. Tr. at 5883 (Walsh).
10. DEFENDANTS’ EXPERT, DR. KEVIN WALSH Defendants’ expert, Dr. Kevin Walsh, is a psychologist and the Director of Quality Management and Research for Developmental Disabilities Health Alliance, Inc. (“DDHA”). Tr. at 5782-93 (Walsh), Def. Ex. 92-A. Based on education and experience, Dr. Walsh, is an expert in the provision of psychological services, management of services for developmentally disabled
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people, and the provision of community based services for developmentally disabled people. Tr. at 5782-93 (Walsh), Def. Ex. 92-A.
DDHA, the organization for which Dr. Walsh is the Director of Quality Management and Research, provides community based health care, including in-home behavioral supports, and related services to individuals throughout New Jersey and has been one of the largest, if not the largest, provider of community-based specialized primary health care to individuals with developmental disabilities in the country, providing services to approximately 3,000 individuals and care management to approximately 4,500 individuals. Tr. at 5782-93, 5801 (Walsh), Def. Ex. 92-A. DDHA focuses exclusively on providing services for developmentally disabled individuals living in community settings. Tr. at 5802 (Walsh). The organization regularly develops habilitation programs, in-home behavioral supports, behavior plans, and individual plans for its clients. Tr. at 6037 (Walsh). It also operates an in-home behavioral support programs for school-aged children. Tr. at 6038 (Walsh).
Among other things, in his position as Director of Quality Management and Research for DDHA, Dr. Walsh does direct care staff training on the program plans developed by DDHA. Tr. at 6039 (Walsh). As part of his current work at DDHA, Dr. Walsh also develops training manuals and systems for DDHA on behavioral management, community services, professional support, and quality management. Tr. at 5792, (Walsh), Def. Ex. 92-A.
Dr. Walsh has more than a decade of experience working in state operated institutional settings and has extensive experience in consultation with state-operated facilities. Tr. at 578293, (Walsh), Def. Ex. 92-A. Until recently, Dr. Walsh was licensed as a clinical psychologist, but opted not to renew that license because his current practice focuses on research, policy, and system management as they relate to psychological and other services for the developmentally
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disabled. Tr. at 5783 (Walsh). Dr. Walsh has published over 50 peer-reviewed publications, including publications on clinical psychology, systems, and policy issues. Tr. at 5784 (Walsh). He is an associate editor of the American Association of Intellectual and Developmental Disabilities, requiring him to make decisions on acceptance or rejection of publications, manage the peer-review process, manage reviewers, and edit manuscripts that are submitted to the journal. Tr. at 5784-85 (Walsh).
Dr. Walsh has been on his county ARC for approximately 19 years and president of that organization for 14 years. Tr. at 5785 (Walsh). Dr. Walsh has been on the executive committee of the board of the ARC of New Jersey for approximately 15 years. Tr. at 5785-86 (Walsh). ARC, formerly known as the Association for Retarded Citizens, promotes community based services for the developmentally disabled. Tr. at 5786 (Walsh). Dr. Walsh’s county ARC is a service provider, providing support services, supportive living, and supportive work in community based settings. Tr. at 5786 (Walsh). Dr. Walsh also serves on the ARC’s mainstream medical care board and advisory board. Tr. at 5786 (Walsh). In the past, Dr. Walsh has been involved with several work groups to study issues of long-term care and aging. Tr. at 5788 (Walsh).
Dr. Walsh also serves on the state level behavior review committee for the state of New Jersey, which is the committee that develops behavioral policy for the state and reviews proposals from service providers. Tr. at 5786-87 (Walsh). Dr. Walsh also serves on New Jersey’s state level interdisciplinary research committee, which reviews any research proposals that are put forward that will include any developmentally disabled New Jersey residents as subjects. Tr. at 5787 (Walsh). Dr. Walsh is also on the restraint working group for the state of New Jersey, which has been rewriting the states policies on restraints for several years. Tr. at
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5787-88 (Walsh). Dr. Walsh also serves on the New Jersey Olmstead Oversight Committee as a member of the quality work group, which was established by the state to oversee the state’s decision to move residents from developmental centers in conjunction with the state’s Olmstead plan. Tr. at 5788 (Walsh).
Among other positions that he has held, Dr. Walsh was the Director of Psychology at the Training School at Vineland, which was a residential facility with more than 250 residents. Tr. at 5789 (Walsh). Dr. Walsh’s work at the Vineland facility included developing a package of nonaversive physical holds to replace the facility’s disjointed restraint techniques. Tr. at 5790 (Walsh). The program developed by Dr. Walsh at Vineland in the early 1980s is still used there, and since that time it has also been used to train people working with the developmentally disabled in community settings. Tr. at 5791 (Walsh). Since its inception, over 15,000 direct care staff and 500 trainers, in small and large residential settings, have been trained on that program. Tr. at 5791 (Walsh). That training program uses some video training and is competency based. Tr. at 5791 (Walsh).
Dr. Walsh initially became involved with CHDC in 2003, subsequent to a visit from the Department of Justice. Tr. at 5792 (Walsh). In 2003, Dr. Walsh observed that CHDC had higher numbers of restraints that it currently has. Tr. at 5792 (Walsh). In 2003, Dr. Walsh acknowledged that CHDC’s documentation and management of restraints could be improved and he made recommendations for CHDC to accomplish that. Tr. at 5792-93 (Walsh). In 2005, Dr. Walsh reviewed services at CHDC again and made additional recommendations to CHDC for even further improvements. Tr. at 5793 (Walsh). In 2008, Dr. Walsh worked directly with CHDC’s Chief of Psychology, Dr. Reddig, to formulate the behavior plans, the positive behavior support plans, strategy plans, and safety plans, which are presently in use at CHDC. Tr. at 5793
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(Walsh). Dr. Reddig and CHDC personnel developed the forms, documentation, and details associated with the current behavior plans and Dr. Walsh reviewed those materials after they were developed by Dr. Reddig and CHDC personnel. Tr. at 5793 (Walsh). The behavior plans at CHDC were structured to be coordinated with the use and reduction of planned restraints. Tr. at 5793 (Walsh).
11. DR. WALSH’S METHODOLOGY Prior to writing his rebuttal report in this matter, Dr. Walsh toured CHDC in September 2009 for four days and in March 2010 for three days. Tr. at 5800 (Walsh). In preparation for his report in this matter, Dr. Walsh collected data and information from which he could extract data, including policies, procedures, and interviews. Tr. at 5800 (Walsh). In particular, Dr. Walsh gathered data on restraint numbers, human rights committee records, incident reports, and statistical incident reports in preparation for his report. Tr. at 5801 (Walsh). Based on undisputed information provided from CHDC to Dr. Walsh, Dr. Walsh used the number 503 as the total population of residents at CHDC, which he relied on in calculating percentages relative to CHDC’s total census. Tr. at 5809 (Walsh). Among other things, Dr. Walsh did a behavior management review of CHDC from 2009-2010, which included taking a randomized, stratified, representative sample of CHDC residents who are on behavioral strategies. Tr. at 5802-03 (Walsh). The behavioral strategies reviewed by Dr. Walsh are called “Safety Plans” at CHDC and are the psychology department plans for residents who have some kind of restrictive element written into their program plans. Tr. at 5803 (Walsh). At the time of Dr. Walsh’s review in September 2009, he was provided a list of all CHDC residents who had Safety Plans. Tr. at 5803
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(Walsh). At that time, there were 99 CHDC residents with Safety Plans. Tr. at 5803 (Walsh). Those 99 CHDC residents became the basis for Dr. Walsh’s randomized, stratified, representative sample. Tr. at 5803 (Walsh).
In his review of behavior plans at CHDC, Dr. Walsh’s intention was to characterize the behavior plans and their outcomes for the people who were on behavior plans. Tr. at 5803-04 (Walsh). Among the people who were on safety plans at CHDC at the time of Dr. Walsh’s review, he randomly selected thirty of those people. Tr. at 5804 (Walsh). Dr. Walsh’s random selection of CHDC Safety Plans was generated from a random number of tables using an Excel spreadsheet. Tr. at 5804 (Walsh). If a randomly selected Safety Plan for a CHDC resident had a related Positive Behavior Support Plan or Strategy Plan, Dr. Walsh also reviewed those related plans for the respective CHDC resident. Tr. at 5804 (Walsh).
In addition to the thirty Safety Plans Dr. Walsh reviewed, seven of those plan had Positive Behavior Support Plans associated and the other twenty-three Safety Plans had Strategy Plans associated with them. Tr. at 5804 (Walsh). In his review of behavior plans at CHDC, Dr. Walsh reviewed a total of sixty plans for thirty CHDC residents, comprised of thirty Safety Plans, seven Positive Behavior Support Plans, and twenty-three Safety Plans. Tr. at 5804 (Walsh). The thirty people, who’s behavior plans Dr. Walsh reviewed, represented a thirty percent sample of the people at CHDC who had safety plans. Tr. at 5804 (Walsh). The sample of CHDC residents who’s Safety Plans Dr. Walsh reviewed was a random sample representative of CHDC residents who had Safety Plans. Tr. at 5804 (Walsh).
To make the representation of the population even more reliable, Dr. Walsh used a stratification system in which he built a sampling frame using age, unit, and intellectual disability level to stratify his sample. Tr. at 5804 (Walsh). The importance of stratification in sampling is
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that it makes the sample more representative and makes it truly scientific. Tr. at 5805 (Walsh). Large sampling organizations, like the Gallup organization, are able to use stratified random sampling of only 2,000 people to predict how 300 million voters will vote. Tr. at 5805 (Walsh).
Dr. Walsh’s stratification of the age of CHDC residents was three groups, under the age of twenty-two, ages twenty-two to fifty, and over the age of fifty. Tr. at 5805 (Walsh). Dr. Walsh also stratified the CHDC residents, who’s plans he reviewed, into two groups, based on the severity of their intellectual disability, “mild and moderate,” and “severe and profound.” Tr. at 5805 (Walsh). In identifying his sample, Dr. Walsh also noted the CHDC residence for each of the individuals he reviewed. Tr. at 5805 (Walsh).
Dr. Walsh’s sample included seven CHDC residents who were under twenty-two, sixteen who were aged twenty-two to fifty, and seven who were over fifty. Tr. at 5806 (Walsh). Dr. Walsh’s random, stratified, and representative sample of CHDC residents was further validated by his sample containing approximately the same age distribution, level of disability, and residence location as the entire CHDC population. Tr. at 5806 (Walsh). The reason Dr. Walsh identified a random, stratified, and representative sample was because it was critical for him to be able to look at those 30 people and for whatever he found for those 30 people, also be able to conclude that those findings applied to all CHDC residents with Safety Plans. Tr. at 5806 (Walsh).
Dr. Walsh’s evaluation of CHDC’s quality included an analysis of structure, process, and outcomes. Tr. at 5808 (Walsh). Dr. Walsh’s analysis of the processes at CHDC included how things were done generally and how plans were written and approved in particular. Tr. at 5809 (Walsh). Dr. Walsh’s analysis of CHDC was markedly more representative compared to Plaintiff’s experts, who looked almost exclusively at processes at CHDC, rather than outcomes.
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Tr. at 5809 (Walsh). Dr. Walsh’s analysis of the outcomes at CHDC included what was really happening at CHDC, as opposed to what Plaintiff’s experts’ assumed was happening based on their interpretations of CHDC processes. Tr. at 5809 (Walsh).
Regarding standards, based on his extensive experience and education in the fields of psychology, quality, research, management, and community based services for the developmentally disabled, Dr. Walsh testified that the ICF/MR standards are the relevant standards of care for CHDC. Tr. at 6059 (Walsh). He testified further that reliance on journal articles is not an appropriate way to define professional standards. Tr. at 6060 (Walsh).
12. FUNCTIONAL ASSESSMENTS Functional behavior assessments are not common in settings like CHDC and are not required by ICF/MR regulations or professional standards. Tr. at 6092 (Walsh). Research studies show that it is not possible to discern function for approximately five to seven percent of individuals like the residents of CHDC because their behavior is not clear. Tr. at 5846 (Walsh). Efforts to conduct functional assessments in applied settings are only recently becoming more common. Tr. at 5794 (Walsh). No body of standards requires functional behavior assessments be conducted at CHDC. Tr. at 6092 (Walsh). Nevertheless, CHDC has made significant improvements in recent years in doing functional assessments for CHDC residents. Tr. at 582930 (Walsh). CHDC’s Psychology staff are responsible for intellectual and functional assessments at CHDC. Tr. at 1956 (Reddig). All CHDC residents have had functional assessments conducted by licensed psychological examiners. Tr. at 5919 (Walsh). CHDC psychological examiners make professional judgments about whether and how to use the CHDC functional assessment
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worksheet in assessing CHDC residents. Tr. at 1776, 1959, 5794 (Adams, Reddig, Walsh). A functional assessment is done at CHDC in order to identify and assess what function a problem behavior serves for a person and, in turn, offset the need for the problematic behavior by addressing that function in another way. Tr. at 1776, 5794 (Adams, Walsh). Some CHDC psychological examiners use the CHDC functional assessment worksheet in conjunction with an indirect commercial scale. Tr. at 1776, 5838 (Adams, Walsh). For example, Ms. Glenn uses CHDC’s functional assessment worksheet in conjunction with commercially available functional scales such as the Motivation Assessment Scale, which, when used together, rate the behavior and give her information about the function of the behavior, antecedent conditions, and the setting in which the behavior is occurring. Tr. at 6681 (Glenn). CHDC psychological examiners also use the Vineland Adaptive Behavior Scale when they deem it appropriate. Tr. at 1774 (Adams). Any CHDC psychological examiner can use the Motivation Assessment Scale or any other commercial assessment scale if they believe it will be useful for a particular resident on their caseload. Tr. at 1968 (Reddig).
When completing a functional assessment for an individual, the psychology department at CHDC interviews direct care staff that work with the resident as well as the parent or guardian of the resident to obtain information that only people who interact with the resident everyday would know. Tr. at 6567 (Preist). Psychological examiners also conduct direct observation when completing a functional assessment to see how the individual interacts with others and reacts to certain situations. Tr. at 5919, 6568 (Walsh, Priest). Psychological examiners always use professional judgment when conducting a functional assessment. Tr. at 6570 (Priest). For example, in preparation for completing a functional assessment, Mr. Priest will create a scatter plot of behaviors and list out when the behavior occurred, where it occurred, what the staff
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thought the individual was trying to accomplish with the behavior and what type of behavior was exhibited, in order to determine the true reason for the behavior and capture any trends or patterns. Tr. at 6570 (Priest). Some psychological examiners, like Mr. Priest, have over 20 years of experience working with the same residents at CHDC, which allows them to assess what the function of that person’s behavior is in conjunction with the functional assessment worksheet. Tr. at 1960, 2094 (Reddig).
A functional assessment worksheet is used anytime psychological examiners develop behavior programming, including any behavior plans. Tr. at 6673 (Glenn), Def. Ex. 460. The functional assessment tells CHDC professional staff why a person is exhibiting a certain behavior and what function the behavior serves for that person. Tr. at 6673 (Glenn). After the functional assessment is done by the psychological examiner, the team members meet to discuss the function of the resident’s behavior, what the staff can do to change the situation, and improve or change the behavior. Tr. at 6677 (Glenn). Once the team has discussed the results of the functional assessment, the information obtained from the assessment and the meeting is used to develop a behavior plan. Tr. at 6677 (Glenn). CHDC’s functional assessments also serve to improve the lives of CHDC residents. CHDC collects data on the problems that they are trying to improve and the skills that they are trying to teach to the individual. Tr. at 6581 (Priest). CHDC psychological examiners couple this approach with observation which allows them to determine things such as whether someone is happier, more content with their life, or smiling more. Tr. at 6581 (Glenn). The effectiveness of the functional assessments is proven through the data collected from the observations. Tr. at 6581 (Glenn).
For CHDC residents under the age of twenty-two, functional assessments are also used in conjunction with their educational services. Professionals in CHDC’s education department are
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well informed about functional assessments including how they are completed and how they can be used by the education department. Tr. at 6485, 6486 (Priest). Special education teachers at CHDC also use functional assessments to identify a particular antecedent to a behavior and understand why that behavior occurs. Tr. at 6485, 6486 (Priest). Special education teachers at CHDC use the information contained in the functional assessments, such as antecedents to behavior, and behavior plans to reduce the number of incidents of behavior before they occur. Tr. at 6486 (Priest). The special education department and the psychology department have an open line of communication regarding behavior plans and functional assessments. Tr. at 6487 (Priest).
a. CHDC’S FUNCTIONAL ASSESSMENTS EXCEED PROFESSIONAL STANDARDS
The CHDC functional behavior assessment worksheet meets generally acceptable professional standards in the field of psychology and CHDC psychological examiners are doing professionally accepted functional assessments. Tr. at 5837, 6677 (Walsh, Glenn). Although he did not conduct a scientific review of CHDC’s records, even Plaintiff’s expert, Dr. Manikam admitted that CHDC psychological examiners did functional assessments and he rated some of those functional assessments as excellent. Tr. at 5837-38 (Walsh). Dr. Manikam agreed that all of the functional assessments at CHDC he reviewed included many of the necessary components required for adequacy. Tr. at 3206, 3207 (Manikam).
Dr. Walsh separately rated the functional assessment sections of the CHDC behavior plans he reviewed. Tr. at 5818 (Walsh). Dr. Walsh’s analyzed the functional assessments by CHDC psychological examiners as a separate component of his analysis of the CHDC behavior plans. Tr. at 5817-18 (Walsh). For approximately thirteen percent of the CHDC residents, whose
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behavior plans Dr. Walsh reviewed, the use of an indirect commercial scale for functional assessment was used, specifically the motivational assessment scale. Tr. at 5828 (Walsh). For approximately sixty-three percent of the CHDC residents, whose behavior plans Dr. Walsh reviewed, the CHDC functional analysis worksheet was used. Tr. at 5828 (Walsh). For approximately twenty percent of the CHDC residents, whose behavior plans Dr. Walsh reviewed, some form of functional assessment was done other than an indirect commercial scale or the CHDC functional analysis worksheet. Tr. at 5828 (Walsh). For approximately ninetyseven percent of the CHDC residents, whose behavior plans Dr. Walsh reviewed, the psychological examiner included information from interviews with staff or others in the functional assessment. Tr. at 5828 (Walsh).
All of the CHDC behavior plans reviewed by Dr. Walsh included direct observations of the CHDC resident for whom the plan was created. Tr. at 5829 (Walsh). Sixty percent of the CHDC behavior plans reviewed by Dr. Walsh included information from other records of the CHDC resident. Tr. at 5829 (Walsh). All of the CHDC behavior plans reviewed by Dr. Walsh included some function or hypothesized function for behavior. Tr. at 5829 (Walsh). Dr. Walsh rated most of the functional assessment in the CHDC behavior plans as average or good. Tr. at 5829 (Walsh).
b. PLAINTIFF’S EXPERTS’ BASELESS RECOMMENDATIONS FOR SPECIFIC FUNCTIONAL ASSESSMENT METHODS
Functional assessment techniques are assessments of an individual’s behavior as opposed to experimentally analyzing it. Tr. at 5835 (Walsh). Functional assessments may be in the form of indirect functional assessments, also known as non-experimental functional analysis, which include things like questionnaires given to staff. Tr. at 5835 (Walsh). Functional assessments
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may also be in the form of direct functional assessments, such as the CHDC functional assessment form, which is also called a descriptive form. Tr. at 5836 (Walsh). If the CHDC functional assessment form is deconstructed, it includes staff interviews, direct observations, contingency analysis, and antecedent, behavior, consequence analysis, communication analysis. Tr. at 5836 (Walsh). Indirect functional assessments and descriptive tools, like the one predominantly used at CHDC are both secondary measures and treated in professional literature as equivalents. Tr. at 5837 (Walsh).
Plaintiff’s expert, Dr. Matson, proposed that CHDC psychological examiners do more experimental functional analysis. Tr. at 1008-09, 1205 (Matson). As an initial matter, CHDC psychological examiners are all licensed professionals, who have the right to practice their profession within the bounds of their license, which may include non-behaviorist psychology. Tr. at 5835 (Walsh). Non-behaviorists may not want to set up anything like the experimental functional analysis proposed by Dr. Matson and deferring to their professional judgment would require one to respect that decision. Tr. at 5835 (Walsh).
CHDC does not use applied behavior analysis because it is more conducive to a research environment rather than a treatment environment. Tr. at 6571 (Priest). Applied behavior analysis requires a very controlled environment where certain variables can be manipulated in order to test their effect on the target behavior. Tr. at 6571 (Priest). Applied behavior analysis could cause things to be worse for an individual if variables are not manipulated in the right way and psychological examiners at CHDC have used their professional judgment to refrain from practicing in that fashion with residents’ safety in mind. Tr. at 6580 (Priest).
Further, the use of experimental functional analysis proposed by Dr. Matson would require CHDC residents repeated exposure to negative scenarios in an effort to determine the
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function of an individual’s behavior based on his or her reaction to varying scenarios. Tr. at 5834-35 (Walsh). Application of that type of experimental functional analysis would subject CHDC residents to repeated, negative stimuli in the hope of eventually understanding the function of a particular behavior. Tr. at 5834-35 (Walsh). The experimental functional analysis proposed by Dr. Matson at CHDC would also be difficult or impossible to set up, resource intensive, and has not been used widely in any field of psychology because it is difficult to do. Tr. at 5834-35 (Walsh). Although Plaintiff’s experts would not require CHDC psychological examiners to do experimental functional analysis, their suggestion reveals their subjective review of services at CHDC. Tr. at 6094-95 (Walsh).
Plaintiff’s expert, Dr. Matson, admitted that his proposed experimental functional analysis is labor intensive and ethically troubling. Tr. at 1012 (Matson). Dr. Matson’s alternative proposal is for CHDC to use a commercially available tool such as the Motivation Assessment Scale, which is already in use at CHDC. Cf. Tr. at 1012, 6681 (Matson, Glenn). All of those tools recommended by Dr. Matson derive information entirely on interviews with staff, which is a component of every functional assessment done by CHDC psychological examiners. Tr. at 5829 (Walsh).
13. CHDC BEHAVIOR PLANS Doing a behavior plan for someone who is severely or profoundly disabled is incredibly difficult for a psychologist because it can be like working in the dark. Tr. at 5845 (Walsh). Research studies have shown that it is not possible to discern function for approximately five to seven percent of individuals like the residents of CHDC because their behavior is not clear. Tr. at 5846 (Walsh). CHDC has three types of behavior plans – Safety Plans, Positive Behavior
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Support Plans, and Strategy Plans . Tr. at 5797 (Walsh). Behavior plans are developed, written, and implemented in a large, team framework at CHDC. Tr. at 5807 (Walsh). As such, CHDC’s behavior plans form an intercommunication network among staff, directing treatment and goals for CHDC residents. Tr. at 5808 (Walsh). The behavior plans are one of the sets of tools that CHDC psychological examiners use to serve their clients. Tr. at 5798 (Walsh).
Each of the CHDC behavior plans – Safety Plans, Positive Behavior Support Plans, and Strategy Plans – contains a functional analysis. Tr. at 5797 (Walsh). The CHDC behavior plans may look similar, but they each have three very distinct and separate functions. Tr. at 5797 (Walsh).
a. SAFETY PLANS If a CHDC resident requires enhanced supervision or any other service that is considered an intrusion on his or her rights, then a CHDC Safety Plan is created. Tr. at 1827, 6562 (Adams, Priest). CHDC Safety Plans are the place where any restraints, planned restraints, or any kind of restrictive procedures, are delineated by the treating professional. Tr. at 5795 (Walsh). Safety Plans necessarily have restrictive procedures in them. Tr. at 5830 (Walsh). CHDC has three types of Safety Plans: safety plans with planned restraints, safety plans with personal holds and mechanical restraint, and safety plans with planned restrictions. Tr. at 1946 (Reddig). Any CHDC resident with any type of restraint will have a Safety Plan. Tr. at 1827 (Adams). If a Safety Plan is appropriate for an individual at CHDC, there will always be either a strategy or positive behavior support plan which accompanies the safety plan. Tr. at 1827 (Adams). If a safety plan has restraints, it is required, under CHDC Policy II D 16, to have a corresponding positive behavior support plan in order to improve the individual’s behavior and decrease the incidents requiring restraint. Tr. at 1827, 1946, 2077, 6485, 6562, (Adams, Reddig,
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Buck, Priest), Def. Ex. 366. Safety plans and positive behavior support plans may not change from year to year if success is obtained and no changes are needed. Tr. at 1853 (Adams). If a safety plan and a positive support plan are implemented on the same exact date, there is an expectation that they will contain similar if not the same information in the section covering the history of the individual. Tr. at 1854 (Adams). Safety plans are different from positive behavior support plans in that they are used only in instances where a person is displaying aggression, self injury or significant property damage which requires some planning as to how to intervene with that behavior. Tr. at 2076-77 (Reddig). The safety plan is designed to cure the emergency or the unsafe behavior and return the person to their regular programming as it is laid out in their Individual Program Plan. Tr. at 2076-77 (Reddig).
Safety plans and any corresponding behavior plans go through the interdisciplinary team process and human rights committee. Tr. at 5004 (Miller). The interdisciplinary team determines whether a safety plan is needed based on whether the risk of an individual’s behavior is greater than the risk of the safety plan use. Tr. at 1947 (Reddig). If the team decides that the risk of the behavior is greater, then they explain in the program that the risk of allowing the inappropriate behavior to continue outweighs the risk of the safety plan use. Tr. at 1947 (Reddig). After they are developed and written, those plans go to the CHDC Chief of Psychologist, the physician, the guardian, and then to the superintendant for approval. Tr. at 1849, 5004 (Adams, Miller). Prior to Superintendent Price’s approval, on behalf of the Quality Assurance Department, Gail Miller reviews the behavior plans for specific components and to ensure that staff will be able to understand the plans. Tr. at 5004-5008 (Miller). Ms. Miller reviews the strategy plans and the positive behavior support plans to make sure they coincide with the safety plan. Tr. at 5008
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(Miller). While reviewing the safety and strategy plans, Ms. Miller keeps in mind the CARF and CMS standards. Tr. at 5008 (Miller).
Evaluating only a Safety Plan for a CHDC resident will not show all of the behavior planning for that resident. Tr. at 6597 (Priest). For example, T.S. just completed the taper criteria for discontinuing restraints from his safety plan, but he is still on increased supervision and there is a system of levels of reinforcement in his safety plan. Tr. at 6594-96 (Priest). T.S.’s psychological examiner and staff are working with him to teach him the skill of taking instruction because his problems with behavior and tantrums stem from simple requests from staff such as “would you check to see if those clothes are yours?” Tr. at 6596 (Priest). His psychological examiner has broken up the steps of taking instruction for T.S. Tr. at 6596 (Priest). Staff have taught T.S. to look at the person giving instruction, listen to the instruction, either ask a question or indicate that you understand, then go do it. Tr. at 6596 (Priest). That part of T.S.’s program is properly delineated in his Positive Behavior Support Plan. Tr. at 5697 (Gale). Psychology staff at CHDC are tracking T.S.’s progress with taking instruction and report that he has three months with 100% completion on his training for instructions. Tr. at 6596 (Priest).
b. POSITIVE BEHAVIOR SUPPORT PLANS CHDC Positive Behavior Support Plans are used to teach residents alternative behavior to replace undesired behavior that has been identified by professionals. Tr. at 1945, 2076, 5795-96 (Reddig, Walsh). The Positive Behavior Support Plans identify the undesired behavior and the motivations behind that behavior. Tr. at 2076, 5795-96 (Reddig, Walsh). The plans set out instructions to staff on how to implement the program in order to enhance behavior to replace the undesired behavior. Tr. at 1945, 2076, 5795-96 (Reddig, Walsh). They are also used as
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opportunities to expand residents’ skill levels, which can improve their interactions with other people. Tr. at 1945 (Reddig).
Positive Behavior Support Plans are developed, in part, from the functional assessment of a resident’s behavior. Tr. at 6550 (Priest). The CHDC functional assessment worksheet assists psychological examiners in analyzing an individual’s behavior and the function that behavior serves for the individual. Tr. at 6550 (Priest). The functional assessment worksheet analyzes why a resident exhibits a behavior, whether it could be inadvertently reinforced, and what type of positive behavior could replace the problem behavior. Tr. at 6550 (Priest). Before a Positive Behavior Plan is implemented there is an extensive approval process where the plan is reviewed by the interdisciplinary team, the guardian must review the plan and give his or her consent, the chief psychologist must review and approve the plan, then it goes to the individual’s physician who must provide his or her approval at which point it will be sent to the human rights committee at CHDC and then finally the plan will be submitted to the superintendent, Calvin Price. Tr. at 6564 (Priest). Once the plan is approved by the relevant parties, the psychological examiners will in-service the direct care staff and train them on proper implementation of the plan before the plan will be implemented with the individual. Tr. at 6564 (Priest). CHDC psychological examiners often create a Positive Behavior Support Plan in the absence of restraint use even though it is not required, so that the individual can be trained in a new skill that would help them to avoid the problem behavior and avoid the need for any restraint. Tr. at 6562 (Priest).
An example of programming in a Positive Behavior Support Plan would be if a resident is known to get frustrated and toss a table over because he wants a break from what he is doing, the positive behavior support plan would teach that individual the skill of holding up a green card
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that reads “I need a break” as a replacement behavior, thereby bypassing the potential need for a restraint. Tr. at 6562 (Priest).
c. STRATEGY FOR IMPROVED BEHAVIOR PLANS CHDC Strategy for Improved Behavior Plans are similar to plans in other settings that are called “behavioral guidelines.” Tr. at 5796 (Walsh). CHDC Strategy Plans are developed by psychological examiners in conjunction with the interdisciplinary team and are used by staff to address behavior that does not rise to a level that requires a positive behavior support plan. Tr. at 1947 (Reddig). There is nothing contained in a strategy that involves any intrusion on the individual’s rights. Tr. at 6565 (Priest). If a resident at CHDC is diagnosed with a psychiatric condition or is taking psychotropic medications, then CHDC psychology department will always create a Strategy Plan for the individual too. Tr. at 6562, 6564 (Priest). Strategy Plans identify potential problem areas for an individual’s behavior, things that the individual prefers or things that they want to avoid, and directs staff on how to accommodate the individual when those situations present themselves. Tr. at 2077 (Reddig). Strategy Plans focus on how to more effectively interact with a resident and make his or her life more pleasant. Tr. at 2077 (Reddig). They include data from the previous staffing year so staff and treating professionals have a context for a resident’s plan. Tr. at 6593 (Priest). Among other things, Strategy Plans help staff to identify signs of tension or anxiety for a resident and suggest ways to make their environment less stressful. Tr. at 6565 (Priest). For example, C.S.’s psychological examiner testified that C.S.’s strategy plan advises staff that he can be oppositional and he may try to manipulate staff. Tr. at 6593-94 (Priest). The strategy for C.S. recommends that staff stay firm with him and be clear when C.S. asks for
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something. Tr. at 6594 (Priest). The strategy plan specifically instructs staff that “maybe” is not a good response to a question from CS because it is not clear and will likely cause C.S.’s behavior to escalate. Tr. at 6594 (Priest). C.S.’s strategy plan specifically instructs staff to respond to questions from C.S. with a clear “yes” or “no.” Tr. at 6594 (Priest).
d. BEHAVIOR PLANS IMPLEMENTED BY CHDC’S SPECIAL EDUCATION DEPARTMENT
CHDC’s Special Education Department is well informed about the development and use of behavior plans for school-aged residents at CHDC. Tr. at 6485, 6486 (Priest). The CHDC Special Education Department and the Psychology Department have an open line of communication regarding behavior plans and functional assessments. Tr. at 6487 (Priest). CHDC special education teachers receive in-service training on each student’s behavior plan after each plan is approved by the IRC. Tr. at 6486 (Priest). They also keep a copy of each student’s behavior plans in their classroom. Tr. at 6487 (Priest). If a special education teacher determines that a student is experiencing an antecedent condition, as identified in a behavior plan, then he or she uses the instructions in the plan, such as separate and calm, to redirect the student and prevent a behavior incident from occurring. Tr. at 6486 (Priest).
14. PLAINTIFF’S EXPERTS’ BASELESS CRITICISMS OF REPLACEMENT BEHAVIORS AND FIDELITY MEASURES
Plaintiff’s expert’s criticism of fidelity measures at CHDC was unfounded. Tr. at 5823 (Walsh). In 2003, Plaintiff’s consulting psychologist did not express any concerns about treatment fidelity measures. Tr. at 5825 (Walsh). Plaintiff’s experts did not identify any failures in any of the CHDC plans as a result of a lack of treatment fidelity measures. Tr. at 5825
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(Walsh). Similarly, Dr. Walsh did not identify any failures in any of the CHDC plans as a result of a lack of treatment fidelity measures. Tr. at 5825 (Walsh). Professional standards for practice in an applied setting like CHDC do not require or even reasonably allow for fidelity checks in their behavior plans. Tr. at 5822 (Walsh). Professional standards do not require fidelity checks in applied settings like CHDC, as proposed by Plaintiff’s experts, and such fidelity checks are not common in applied practice. Tr. at 5822 (Walsh). Only twenty-five percent of research studies published in peer-reviewed academic journal publications contain some kind of treatment fidelity. Tr. at 5823 (Walsh). Instead of treatment fidelity measures in their behavior plans, CHDC psychological examiners circulate through the living units, monitor treatment plans on a monthly basis, train staff on implementation, and are available for questions and answers, which ensures treatment integrity. Tr. at 5824 (Walsh). Dr. Walsh has reviewed behavior plans in many facilities and has never seen treatment fidelity measures in any of them. Tr. at 5824 (Walsh). Plaintiff’s experts unfairly placed added emphasis on treatment fidelity measures in CHDC’s behavior plans because of their narrow academic background. Tr. at 5825 (Walsh).
Some of Plaintiff’s experts may have failed to identify replacement behaviors in the plans they reviewed because those replacement behaviors are listed in the positive behavior support plans or strategy plans and not necessarily the safety plans reviewed by Plaintiff’s experts. Tr. at 5827 (Walsh). Reinforcement contingencies are the most fundamental piece of a behavior plan and may appear as an if-then statement. Tr. at 5826 (Walsh). In most of the behavior plans reviewed by Dr. Walsh there were clear reinforcement contingencies. Tr. at 5827 (Walsh). In almost all of the behavior plans reviewed by Dr. Walsh, the plans sought to reduce or eliminate problem behaviors and included replacement behaviors. Tr. at 5827 (Walsh). Nearly half of the
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behavior plans reviewed by Dr. Walsh contained reinforcer selection and/or discussion of the same. Tr. at 5827 (Walsh).
15. EXPERT ANALYSIS OF CHDC BEHAVIOR PLANS Defendants’ expert, Dr. Walsh, objectively analyzed the behavior planning and program implementation processes at CHDC. Tr. at 5807 (Walsh). None of Plaintiff’s experts conducted an objective review of CHDC’s Behavior Plans. Tr. at 1201-03, 1210, 3174, 3175 (Matson, Manikam). Defendants’ expert, Dr. Walsh’s, analysis of CHDC behavior interventions at CHDC was a formal, scientific process designed to show the nature and level of behavior interventions at CHDC. Tr. at 5812 (Walsh). Dr. Walsh created the formal tool he used for rating CHDC’s behavioral interventions and called it the “behavior plan quality rating tool” based on his experience analyzing behavior planning at many ICF/MR facilities. Tr. at 5812 (Walsh). Prior to using his behavior plan quality rating tool, Dr. Walsh did a reliability study of the tool, which determined that the tool had reliability that could be the basis for peer-reviewed, academic publication. Tr. at 5813-5817, 6085 (Walsh). The behavior plan quality rating tool used by Dr. Walsh took a snapshot of the elements in the behavior plans. Tr. at 5812 (Walsh). The tool had four sections, each with subparts, addressing administrative, behavioral change, management, and overall elements. Tr. at 5813 (Walsh). Dr. Walsh was careful to minimize the possibility of rater drift in his analysis of behavior plans at CHDC by reviewing all of the plans in his sample in a two-day period without interruption. Tr. at 5813 (Walsh). Dr. Walsh separately analyzed and rated the functional assessment sections of the CHDC behavior plans he reviewed. Tr. at 5818 (Walsh).
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Dr. Walsh concluded that all of the administrative elements that should be in the administrative portion of the CHDC behavior plans were there. Tr. at 5818-19 (Walsh). Most of the behavior plans analyzed by Dr. Walsh did not allow for adjustments within the plan itself, which is directly in line with professional expectations because in an ICF/MR setting it is not appropriate for staff to make changes to a plan on the fly. Tr. at 5819-20 (Walsh). All of the CHDC behavior plans reviewed by Dr. Walsh had descriptions of the target behavior and evidence of functional assessments. Tr. at 5825-26 (Walsh). Some of the plans Dr. Walsh reviewed targeted more than one behavior. Tr. at 5841 (Walsh). At least seventy-five percent of the behavior plans reviewed by Dr. Walsh contained clear descriptions of the plans and specific behavioral techniques. Tr. at 5826 (Walsh). In almost all of the CHDC behavior plans reviewed by Dr. Walsh there were instructions for specific plan techniques, sufficient to ensure implementation. Tr. at 5826 (Walsh). Going beyond professional standards, CHDC also has special meetings when behavior plans do not work in order to discuss those issues. Tr. at 5824 (Walsh).
a. DR. WALSH’S FINDINGS AS TO CHDC BEHAVIOR PLANS
The behavior plans and practices at CHDC meet accepted professional standards. Tr. at 5854 (Walsh). All of the CHDC behavior plans reviewed by Dr. Walsh had data collection provisions and instructions for staff. Tr. at 5830 (Walsh). All but one of the CHDC behavior plans reviewed by Dr. Walsh had been previously reviewed by the CHDC Chief of Psychology, Dr. Reddig, with the exception being one plan for which a cover sheet could not be located. Tr. at 5830 (Walsh). In ninety-seven percent of the CHDC behavior plans reviewed by Dr. Walsh, the instructions for applying the restrictive procedure were clear. Tr. at 5831 (Walsh). For all of the CHDC behavior plans reviewed by Dr. Walsh, he rated the general components as slightly
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above average. Tr. at 5831 (Walsh). For all of the CHDC behavior plans reviewed by Dr. Walsh, there was a range of quality and on the whole CHDC is representative of other ICF/MRs. Tr. at 5832 (Walsh).
b. MEASURES OF OUTCOMES AND EFFECTIVENESS OF CHDC BEHAVIOR PLANS
Outcomes and effectiveness are important in assessing the quality of the CHDC behavior plans. Tr. at 5840 (Walsh). Outcomes are the sine qua non of what is happening at a facility like CHDC. Tr. at 5807 (Walsh). One of the most important outcomes of the CHDC behavior plans is the sixty-nine percent reduction in planned restraints from 2005 through the time of trial. Tr. at 5798 (Walsh). As discussed below, it is also impressive that CHDC had approximately sixty percent improvement in behaviors over about a twelve month period. Tr. at 5846 (Walsh). For the individuals who’s behavior plans Dr. Walsh reviewed, Dr. Walsh also rated the effectiveness of the plan, where there were monthly progress notes available to do so. Tr. at 5840 (Walsh).
Dr. Walsh’s analysis of CHDC behavior plans and monthly progress notes allowed him to determine whether behavior was changing over time. Tr. at 5841 (Walsh). CHDC monthly summaries are data tables that have a record of CHDC residents’ performance relative to a behavior plan. Tr. at 5841 (Walsh). Dr. Walsh compared the first three quarters of data and compared it with the last three quarters of data available for each individual in his sample to determine whether there was an increase or a decrease in the number of target behaviors. Tr. at 5842 (Walsh). Dr. Walsh compared data for target behaviors identified in the CHDC behavior plans that he reviewed to determine whether those behaviors changed over a specified period of time and based on that he gave them an effectiveness rating. Tr. at 5842-43 (Walsh).
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If there were more problem behaviors over time, Dr. Walsh identified the target behavior as worse. Tr. at 5843 (Walsh). If there was up to a thirty-three percent improvement in the target behaviors over time, Dr. Walsh identified the target behavior as improved. Tr. at 5843 (Walsh). If there was between thirty-four and sixty-five percent improvement in the target behaviors over time, Dr. Walsh identified the target behavior as much improved. Tr. at 5843 (Walsh). If there was a sixty-six percent or greater improvement in the target behaviors over time, Dr. Walsh identified the target behavior as greatly improved. Tr. at 5843 (Walsh).
Among the behavior plans that Dr. Walsh rated for effectiveness, approximately fourteen percent had no change; approximately twenty-seven percent of the behaviors got worse; approximately thirty-five percent were greatly improved; approximately five and nine tenths percent were much improved; approximately seventeen and six tenths percent were improved. Tr. at 5843 (Walsh). Among the behavior plans that Dr. Walsh rated for effectiveness, approximately sixty percent of behaviors improved over about a twelve month period, which is remarkable in such a short period of time. Tr. at 5843 (Walsh). The effectiveness of the behavior plans at CHDC indicates that what CHDC is doing in relation to the behavior plans is working and the outcomes for residents are strong. Tr. at 5844 (Walsh).
The behavior plans and practices at CHDC meet accepted professional standards. Tr. at 5854 (Walsh). Not only are standards for professional practice and procedures being met at CHDC, but the outcomes and effectiveness of CHDC’s behavior programming demonstrate that those professional standards have yielded exceptional results for CHDC residents. Tr. at 5798, 5846 (Walsh).
16. BEHAVIOR PLAN TRAINING
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A behavior plan is only implemented at CHDC after all staff, residents, and day programs are trained on the plan. Tr. at 5850 (Walsh). Psychological examiners train staff in the behavior program that they wrote to ensure that staff are trained on all relevant and necessary material and no significant issues are overlooked. Tr. at 2018 (Reddig). The behavior programs at CHDC are not written for a Ph.D. psychologist, rather they are written for direct care staff to understand and be able to follow. Tr. at 6590 (Priest).
At trial, two CHDC psychological examiners described specifically how they work with staff to implement behavior plans and track behaviors. Psychological examiner, Ms. Glenn, trains new staff in the programming for every resident in that living unit where that new staff will work, including safety plans, positive behavior support plans, target behaviors, strategies for improved behavior, psychiatric diagnosis, medications, behavior reports and how to complete behavior reports as well as other documentation used in the residence. Tr. at 6678 (Glenn). New staff is trained to work specifically with the individuals who live in the residences in which they have been assigned to work. Tr. at 6678 (Glenn). Ms. Glenn tests new staff to make sure they are competent in comprehending the behavior programs, identifying target behaviors, and understand which interventions are appropriate and when. Tr. at 6678 (Glenn). Ms. Glenn also routinely goes to new and experienced staff, to conduct in-person training anytime there is a new strategy for improved behavior or new positive behavior support plan or safety plan. Tr. at 6679 (Glenn). After training staff on new components of behavior plans and other changes in programming, Ms. Glenn tests staff on those components to ensure staff understand the plans. Tr. at 6679 (Glenn). Ms. Glenn continuously works with staff to develop plans for the individuals on her caseload. Tr. at 6680 (Glenn). Staff are informed about what behaviors and
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interventions Ms. Glenn is addressing and staff track that behavior and record all of the data surrounding the behavior. Tr. at 6680 (Glenn).
Mr. Priest also testified that he trains staff on the programs that he creates for the individuals on his caseload. Tr. at 6589 (Priest). Mr. Priest also monitors staff to see how they interact with residents, whether they are following the program, whether they are following programs correctly, and documenting information correctly on the behavior reports. Tr. at 658990 (Priest). For example, if staff write on the behavior report that they “followed the program,” Mr. Priest will insist that they tell him precisely what they did, rewrite the behavior report, and remind staff that they are to record specifically what they observed and what they did to address the behavior exhibited by the resident, and then Mr. Priest will determine whether the program was followed or not. Tr. at 6590 (Priest). Mr. Priest also developed a video to assist with training staff on the positive behavior support plans, levels of reinforcement system and increased supervision requirements. Tr. at 6597 (Priest). Staff watch the video then there is an examination of the key points, which staff must pass before working with a resident. Tr. at 6597 (Priest). Staff turns the test into Mr. Priest personally so that when he looks over the test, he can explain to that staff person what questions he or she answered incorrectly. Tr. at 6597 (Priest). It is also a chance to correct staff on any issues and give the staff person an opportunity to ask questions. Tr. at 6597 (Priest). Mr. Priest also observes staff while they are implementing the instructions in the positive behavior support plan. Tr. at 6597 (Priest).
In the past, Mr. Priest had an incident where a staff member did not know how to follow a program that was going to be implemented, so Mr. Priest had that staff member watch the video and take the exam again. Tr. at 6597 (Priest). The staff member got 6 out of 8 of the questions correct after watching the video. Tr. at 6597 (Priest). That score was considered
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unacceptable for CHDC standards and the staff member was transferred to an area where programming was simpler. Tr. at 6597 (Priest). CHDC requires staff to get 100% of the questions correct on the exam testing their competency on implementing behavior plans if staff are working with that resident everyday. Tr. at 6597 (Priest).
17. CHDC QUICK REFERENCE GUIDES CHDC Quick Reference Guides are used on each residential unit. Tr. at 5903 (Walsh). They are beneficial tools that serve multiple functions. Tr. at 5904 (Walsh). The Quick Reference Guides list various information, including behavioral issues, a seizure profile, precautions for bad weather, special dietary instructions, physical therapy instructions, mobility information and equipment needs, risk factors, and other precautions. Tr. at 1212, 1213 (Matson). The Quick Reference Guides also includes a photo of the CHDC resident for whom the Quick Reference Guides was prepared. Tr. at 1212 (Matson). The Quick Reference Guides are not intended to be a substitute for any CHDC resident’s program plan or other records. Tr. at 1213 (Matson). None of Plaintiff’s experts did any formal analysis of CHDC’s Quick Reference Guides, but Plaintiff’s expert, Dr. Manikam relied on them for his substantive analysis of CHDC. Tr. at 1211, 1212, 5904, 5918 (Matson, Walsh).
18. BEHAVIOR REPORTS AND DATA COLLECTION The CHDC behavior reports are a data collection tool for psychological examiners and other professionals. Tr. at 5911(Walsh). A completed behavior report form is sent to the psychological examiner, and the Incident Review Committee, central records, and the resident’s
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residence, and from there the relevant professionals use that information for their respective functions. Tr. at 5910-11 (Walsh). The psychological examiners use the behavior reports to collect data on the type and frequency of behaviors exhibited by residents. Tr. at 5909 (Walsh). That method of data collection is appropriate for psychological examiners because most CHDC residents do not exhibit behaviors at such a high frequency that they could not be accurately tracked in that way. Tr. at 5909 (Walsh).
The CHDC behavior report is a sophisticated form used by psychological examiners and CHDC staff to collect and track data regarding CHDC residents’ behaviors. Tr. at 5910 (Walsh). Behavior reports may be completed by direct care staff if the behavior occurred in the living unit or in front of direct care staff. Tr. at 1994 (Reddig). Teachers may also fill out behavior reports. Tr. at 1994 (Reddig). Behavior reports can be filled out by any staff who have been trained by psychological examiners on how to complete the behavior report. Tr. at 1992 (Reddig). Psychological examiners train staff to identify antecedent conditions that appear immediately before a behavior manifests itself and staff report those conditions on the behavior report. Tr. at 2008 (Reddig). The CHDC behavior report form has fourteen sections for information. Tr. at 5910 (Walsh). The report form requires the individual completing it to provide, among other things, the resident’s name, the residence code, the start and end time of the incident, the location of the behavior, the antecedent condition, which can be selected from seventeen pre-listed check boxes or the “other” box can be selected and a description provided, the target of the behavior, and the type of behavior, which can be selected from among nine pre-listed types of behavior. Tr. at 5910 (Walsh).
The CHDC behavior report form also provides eighteen other pre-listed behaviors, two behaviors about destruction, pre-listed check boxes for verbal expressions, for leaving assigned
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area, for type of restraint used, for staff response, and for a brief summary. Tr. at 5910 (Walsh). The CHDC behavior report form also requires that information to be included about staff members who were involved, including the staff member’s name, title, and the date. Tr. at 5911 (Walsh). There is also a section on the behavior report on the bottom left that indicates staff response to the behavior. Tr. at 4876-77 (Murphy). The immediate response to the behavior by the staff is listed on every report. Tr. at 4876-77 (Murphy).
The immediate purpose of staff completing behavior reports is to report what is going on with the residents they serve such as sleeping patterns, changes in mood, episodes of aggression or refusals, not necessarily to show trends and patterns of restraint. Tr. at 2109 (Reddig). The CHDC behavior report form also allows the psychological examiner to provide information and make an interpretation. Tr. at 4877, 5911 (Murphy, Walsh). Other CHDC professionals derive data from behavior reports to track trends and patterns. Tr. at 2109 (Reddig). Generally, behavior reports are used if a behavior occurs infrequently because data sheets would be inefficient in a situation such as that. Tr. at 1996 (Reddig).
CHDC psychological examiners have two levels of data collection, the behavior reporting system and the psychological examiner’s personalized data collection system. Tr. at 5913 (Walsh). CHDC psychological examiners exercise their professional judgment in building a specific data collection form for particular residents at CHDC. Tr. at 5911-12 (Walsh). CHDC psychological examiners develop their own forms for data collection and tracking behaviors for particular CHDC residents in conjunction with the respective resident’s behavior plans. Tr. at 5912 (Walsh). Data collection sheets may be used for identifying behavior that a psychological examiner wants to track, including sleep patterns, bowl movements, or engagement of certain behaviors. Tr. at 1996 (Reddig). CHDC psychological examiners train CHDC staff on the use of
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the unique forms developed by the psychological examiners for data collection and tracking behaviors. Tr. at 5912 (Walsh). Among other things, CHDC psychological examiners graph data on behaviors. Tr. at 5914 (Walsh). Through the psychological examiner’s personalized data collection system and the behavior reporting system treatment data is collected by psychological examiners. Tr. at 5913, 6581 (Walsh, Glenn).
Plaintiff’s expert, Dr. Matson’s, concern that data cannot reliably be collected at CHDC if more than one behavior is occurring is unfounded because the data sought to be collected are specific predetermined behaviors, not passive research observations. Tr. at 5913-14 (Walsh). Plaintiff’s expert, Dr. Matson, inappropriately compared CHDC psychological examiners real world data collection processes to the data collection of researchers. Tr. at 5909 (Walsh).
Defendants’ expert, Dr. Walsh, analyzed the 243 monthly progress notes from all of the CHDC psychological examiners for the month of June 2009. Tr. at 5914 (Walsh). Dr. Walsh found that seventy-two percent of those progress notes contained data tabulation and tables, contrary to Plaintiff’s experts’ claim that CHDC psychological examiners were not charting their data. Tr. at 5914 (Walsh). Dr. Walsh also found that an additional eighteen percent of those progress notes had data graphed, contrary to Plaintiff’s experts’ claim. Tr. at 5914 (Walsh). CHDC Psychological examiners decision to use charts in some data collection as opposed to graphs is reasonable because their use of charts is with small, uncomplicated numbers and graphing that data would add nothing to the analysis of the data. Tr. at 5915 (Walsh).
CHDC psychological examiners do graph data if it is more complicated or if there is more than one data set being compared. Tr. at 5915 (Walsh). Ninety percent of the June 2009 monthly progress notes prepared by psychological examiners had an objective layout of data, i.e. a graph or a table. Tr. at 5915 (Walsh). Plaintiff produced no evidence that the corresponding
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nine percent of June 2009 monthly progress notes, which contained only narrative descriptions of data, was not appropriate for the data reflected in those summaries. Tr. at 5915 (Walsh). CHDC psychological examiners track treatment data with objective data based means in accordance with professional standards. Tr. at 5916 (Walsh).
19. CHDC PSYCHOLOGY DEPARTMENT’S BEHAVIOR REPORTS AND RESTRAINT USE SUMMARIES
CHDC monitors all behavior reports facility wide. Tr. at 4986 (Miller). The psychology department enters information from all of the behavior reports into a database, which then generates monthly reports. Tr. at 4880 (Miller). The monthly report is called the Behavior Report and Safety Plan Use Report, which, among other things, tracks the total number of behavior reports, safety plan uses, and tracks how many times restraints, including emergency restraints, were used in each month. Tr. at 1261, 1997, 4875, 4876 (Matson, Reddig, Murphy); Def. Ex. SM-4. Graphs are used for these reports because the visual presentation is more readily assessed by professionals across disciplines. Tr. at 4878, 4879 (Murphy), Def. Ex. SM-4. The Behavior Report and Safety Plan Use Report is circulated to program coordinators, team leaders, the quality assurance coordinator, administrative staff, psychology department staff, and the superintendant. Tr. at 2079, 4875, 4876 (Reddig, Murphy). CHDC uses this report in various ways. Tr. at 4882 (Murphy). It provides detailed information about the use of planned restraints for all of CHDC. Tr. at 1999 (Reddig). Those reports are a good resource for CHDC to stay abreast of any trends and patterns associated with residents who have been restrained and any information from behavior reports that were prepared during that month. Tr. at 2079, 4875, 4876 (Reddig, Murphy). Among other things, it includes information about particular residents and outlier restraint data. Tr. at 2079, 4875, 4876 (Reddig, Murphy).
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The behavior reports are used by administrative staff to identify trends and patterns and how best to respond to those issues. Tr. at 4882-4884 (Murphy), Def. Ex. SM-4. For example, the behavior report that included August 9, 2010, indicated a spike in restraints for F.B. Tr. at 4886-87 (Murphy), Def. Ex. SM-4. Because of that indication, the spike would be reviewed by the IRC and the psychological examiner treating FB. Tr. at 4886, 4887 (Murphy), Def. Ex. SM4. Typically, the psychological examiner is contacted first to begin that type of review process. Tr. at 4882-4884 (Murphy), Def. Ex. SM-4. If an increase in restraints is detected in a certain residence or certain individuals, those reasons are also examined. Tr. at 4882-4884 (Murphy), Def. Ex. SM-4. Depending on the reasons, the behavior, environment, or staff may be addressed. Tr. at 4882-4884 (Murphy), Def. Ex. SM-4. Reviewing spikes in behavior for particular days is valuable to understand what may have gone on that particular day to increase behaviors, such as a fire drill or weather conditions. Tr. at 4885, 4886 (Murphy), Def. Ex. SM-4. Such reasons would indicate to the team that perhaps a change in an individual’s plan may not be appropriate because the behavior may have been caused by an anomalous environmental factor. Tr. at 4885, 4886 (Murphy), Def. Ex. SM-4. Trends, patterns, and thresholds are also tracked from the Incident Review Committee meeting minutes to provide CHDC. Tr. at 4930, 4931 (Murphy).
20. CHDC MONTHLY PLAN REVIEWS ENSURE CHDC PROVIDES ACTIVE TREATMENT
CMS regulations require CHDC to provide active treatment for CHDC residents, which is not provided in community based settings. The ICF/MR Guidelines describe active treatment as “aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services….” 42 CFR 483.440(a). CHDC is meeting active treatment standards delineated in ICF/MR regulations. Tr. at 5928 (Walsh). The ICF/MR
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requirement for active treatment does not mean that CHDC residents have to receive programming 24-hours per day. Tr. at 5927 (Walsh). An example of active treatment meeting ICF/MR requirements is setting a goal to teach someone how to brush his or her teeth by having him or her practice teeth brushing three times a week. Tr. at 5927 (Walsh). Although none of Plaintiff’s experts reviewed active treatment at CHDC in any depth, Plaintiff’s experts agreed that CHDC residents should not be constantly engaged, in adaptive skills, speech, or other skillbuilding activities. Tr. at 1263, 1264, 3195, 3196 (Matson, Manikam).
The monthly plan reviews at CHDC is a program review that is done to ensure quality and that the active treatment requirements for residents are met. Tr at 5950 (Walsh). The reviews include assessing programs that are part of the Individual Program Plans for each CHDC resident. Tr. at 5950 (Walsh). The monthly plan review occurs at the team level and again at a central level. Tr. at 5950 (Walsh).
At the team level, program coordinators do a monthly plan review for each resident, which is a paper review. Tr. at 5950 (Walsh). On a monthly basis, CHDC program coordinators serve an ongoing quality review function by conducting a process called “monitoring,” which involves the program coordinators observing the training of at least one objective for each client. Tr. at 5950 (Walsh). The monthly plan reviews done by the program coordinators are documented on a two page sheet that includes data and narrative sections. Tr. at 5951 (Walsh).
The central monthly plan review is done by someone in the quality assurance department and includes a review of the actual IPP documents. Tr. at 5951 (Walsh). The central monthly plan review includes an analysis of the IPP documents with CHDC’s IPP review check sheet, which has seventy-seven items to make sure the IPPs have the necessary components and that those components hold together and make sense. Tr. at 5951 (Walsh). The CHDC Quality
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Assurance Department reviews 840 IPPs annually with the CHDC IPP review check sheet in addition to the 6,000 plus annual team level monitoring checks. Tr. at 5952 (Walsh). Programs at CHDC are constantly reviewed to ensure their effectiveness and implementation. Tr. at 5952 (Walsh).
21. CHDC’S HUMAN RIGHTS COMMITTEES The human rights committees at CHDC use preformatted human rights committee review reports. Tr. at 5933 (Walsh). The first page of the human rights committee review report is largely data based, including personal documentation, medication, monitoring, and objectives under review, and the second page is largely narrative. Tr. at 5933 (Walsh). The human rights committee meeting minutes go beyond professional standards by keeping the human rights committee meeting minutes on the form with the individual’s records. Tr. at 5933 (Walsh). The CHDC human rights committees do not just do one time checks on matters that potentially impact residents’ rights, but rather the committees may do extra reviews of a matter after one month, three months, or six months. Tr. at 5934-35 (Walsh). The CHDC human rights committees may review residents’ cases even where there is no behavior plan if someone notices an increase in problem behaviors. Tr. at 5935 (Walsh). Defendants’ expert, Dr. Walsh, took all of the human rights committees meeting minutes from March and April 2009 and analyzed those minutes to characterize what was accomplished by those meetings and minutes. Tr. at 5934 (Walsh). The human rights committee meetings reviewed by Dr. Walsh included psychological examiners, representatives from the community, a consumer representative, a CHDC staff member representative, a medical representative, and the human rights committee chairperson. Tr. at 5934 (Walsh). Dr. Walsh found that the CHDC human rights committee meets ICF/MR requirements for plan and review. Tr. at 5848-49
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(Walsh). The CHDC human rights committee exceeds professional standards and its process and outcomes reflect its high achievements. Tr. at 5935 (Walsh). In addition to the human rights committees, as discussed above, CHDC has another group of oversight committees called the incident review committees. Tr. at 5936 (Walsh).
C. CHDC HABILITATION, NUTRITION MANAGEMENT, COMMUNICATION, SPEECH THERAPY, PHYSICAL THERAPY, OCCUPATIONAL THERAPY, ORAL HYGIENE
The Plaintiff provided insufficient evidence, and in some cases no evidence, to prove that the Defendants substantially departed from accepted professional practice in the areas of habilitation, nutritional management, communication and speech therapy, physical therapy and occupational therapy, and oral hygiene. Furthermore, the Defendants’ nationally-recognized experts concluded that the state’s treating professionals are exercising professional judgment and meeting or exceeding accepted professional standards in these areas.
The Plaintiff cannot meet its burden of proof by presenting nothing more than (1) a difference of professional opinion as to which practices are appropriate or (2) expert testimony that another course of action would have been better. Youngberg v. Romeo, 457 U.S. 307, 321 (1982); Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998); Lelsz v. Kavanagh, 807 F.2d 1243 (5th Cir. 1987); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1248 (2nd Cir. 1984); Doe v. Gaughan, 617 F. Supp. 1477, 1487 (D. Mass, 1985), aff'd, 808 F.2d 871 (1st Cir. 1986); See also Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir. 1990) (noting that Youngberg prohibits courts from "weigh[ing] the decisions of the treating professionals against the testimony of the [plaintiffs'] professionals to decide which of several acceptable standards should apply"); U.S. v. Comm. of Pennsylvania, 902 F. Supp. 565, 584
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(W.D. Pa. 1995) ("Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard"). Rather,
Liability may be imposed only when [a] decision by [a] professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.
Youngberg, 457 U.S. at 323. The evidence at trial clearly demonstrates that CHDC’s treating professionals exercise
professional judgment. Defendant’s experts, nationally recognized, highly qualified professionals, concur that professional judgment was exercised and that practices at CHDC meet or exceed accepted professional standards.
22. DEFENDANTS’ EXPERTS, DR. SHEPPARD, DR. SCHMELER, MR. JINKS, AND MS. HACKETT, ARE MORE QUALIFIED, USED MORE APPROPRIATE METHODOLOGY, AND APPLIED MORE APPROPRIATE STANDARDS THAN PLAINTIFF’S EXPERT, MS. CRAWFORD, IN RENDER OPINIONS ON THE QUALITY OF NUTRITIONAL MANAGEMENT, COMMUNICATION AND SPEECH THERAPY, PHYSICAL AND OCCUPATIONAL THERAPY, AND ORAL HYGIENE AT CHDC
Because of the Defendants’ experts’ specialized and highly qualified backgrounds, Defendants’ experts are more aware of the accepted professional standards in their respective fields. Plaintiff’s expert, Ms. Carly Crawford (OT), presented the majority of testimony regarding nutritional management, communication and speech therapy, and physical therapy (PT) and occupational therapy (OT). Defendants’ experts, Dr. Sheppard (nutritional
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management), Dr. Mark Schmeler (OT), Mr. Jinks (communication and speech therapy), and Ms. Pamela Hackett (PT) were far more qualified than Ms. Crawford to render opinions on the quality of care at CHDC in these areas.
Plaintiff’s expert, Ms. Crawford, is a licensed occupational therapist in the state of Oklahoma. Tr. at 2739, 2743 (Crawford). She has no licensing or training as a physical therapist, no formal training or licensing as a speech therapist, no formal training or licensing as a nutritionist, no formal training or licensing in psychology, and no formal training or licensing in nursing. Tr. at 2898 (Crawford). Ms. Crawford was a teacher for the deaf, but she has no formal training or licensing in any area other than occupational therapy. Tr. at 2898 (Crawford). Ms. Crawford is not licensed to provide physical therapy, speech therapy, nursing, or dietary services. Tr. at 2899 (Crawford). She is not certified by RESNA. Tr. at 2900 (Crawford). She holds no academic appointments, has not published any peer reviewed journals, and has not given any formal presentations in “some years.” Tr. at 2900, 2901 (Crawford). Ms. Crawford does not directly provide services to any adults. Tr. at 2901 (Crawford). She has never been qualified by a Court to offer an expert opinion regarding the standard of care for occupational therapy (or physical therapy, speech pathology, nutrition, medicine). Tr. at 2901 (Crawford). Similarly, Ms. Crawford has no training or experience to offer an expert opinion as to psychology or medicine. Tr. at 2901, 2902 (Crawford). Defendants’ expert, Dr. Kastner, found it inappropriate for Ms. Crawford to comment on physical and nutritional management as she is not licensed as a physical therapist or a speech language pathologist. Tr. at 4272 (Kastner). N the issue of expert qualifications, Dr. Kastner, noted:
Ms. Crawford’s opinions would seem to undermine that requirement, because what she proposed in her report was really based upon the idea that having worked shoulder to shoulder with people she somehow had obtained sufficient knowledge to be able
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to practice in those disciplines. So her opinion regarding positioning, for example, which she acknowledged falls into the scope of practice of a physical therapist, are really without any basis. Her opinion about feeding practices, which fall into the scope of practice of a speech therapist, really have no basis at all, no documents, no practice parameters, guidelines, recommendations, standards, licensure, just her opinion.
Tr. at 4031 (Kastner). Further, Ms. Crawford’s testimony suggests that she is biased against institutional
settings and that she may come to the same conclusion in every institution that she reviews. On page 1 of her expert report in this matter, Ms. Crawford referenced the Beatrice State Development Center. In part, she explained: “I have done many of these reports and I have a template that I use that includes the general propositions and this particular first page has the outline because I used the same methodology for all of them ….” Tr. at 2904 (Crawford). When asked if it was accurate to say that her report for Beatrice contained many of the same conclusions as the report in this matter, Ms. Crawford responded that there “were possibl[y] some similarities.” Tr. at 2905 (Crawford). Ms. Crawford did not produce the Beatrice report to the Defendants per their request for comparison. Ms. Crawford deferred to the DOJ attorney as to whether or not to turn over the Beatrice report. She stated: “I was allowing the attorney to make that determination. I don’t know what the rules are in terms of confidentiality for other cases I am working on.” Tr. at 2905, 2906 (Crawford). Ms. Crawford made no recommendations in her report, yet her report refers to a recommendation section in her introduction. She explained: “[T]hat page is a document on my computer that has these very same things in it and I did not make that.” Tr. at 2906 (Crawford). Such statements further support a finding that Ms. Crawford uses the same reports for various institutions that she reviews.
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Three of five of Ms. Crawford’s references supporting her findings were handouts not drafted by her. Tr. at 2915, 2916 (Crawford). Such handouts cannot be considered accepted professional standards. Defendants’ expert, Dr. Kastner concluded tht Ms. Crawford is not qualified to comment on the scope of practice for physical therapists, nutritionists, nurses, psychologists, or physicians. Tr. at 4274 (Kastner). Her comments on physical assistance supports and mealtime supports are completely without any basis. Tr. at 4274 (Kastner). She also could not cite any evidence as to standards for physical and nutritional supports. Tr. at 4274 (Kastner).
The Plaintiff presented only the testimony of its occupational therapist, Ms. Crawford, to cover all of the professional disciplines of nutritional management, communication and speech language pathology, and physical management (OT and PT). The Defendants, in contrast, presented testimony of four highly specialized experts to review each of these areas.
Justine Joan Sheppard, Ph.D., CCC/SLP, BRS-S Defendants’ expert, Dr. Justine Joan Sheppard is an adjunct professor and associate professor at Teachers College, Columbia University. Dr. Dr. Sheppard is also a consultant for her private practice, Nutritional Management Associates. Nutritional Management Associates provides consultation to facilities and programs that treat children and adults with developmental disabilities. Tr. at 3288 (Sheppard); Def. Ex. 269. Dr. Sheppard teaches courses in pediatric and adult dysphagia, and courses in diagnostic practicum and content on children with disabilities needing early intervention. Tr. at 3291 (Sheppard). She has taught at Columbia University since the mid 1970s. Tr. at 3291 (Sheppard). Dr. Sheppard holds a Master’s Degree from Teachers College, Columbia University, and a Ph.D in speech pathology from Columbia University. Tr. at
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3288, 3289 (Sheppard), Def. Ex. 269. She is licensed as a speech pathologist in New York State and in New Jersey. Tr. at 3289 (Sheppard), Def. Ex. 269. She is also certified by the American Speech Language Hearing Association in speech. Tr. at 3289 (Sheppard), Def. Ex. 269.
Dr. Sheppard’s involvement with professional organizations includes serving on numerous ad hoc committees for the American Speech Language Hearing Association (the committees focused on feeding and swallowing disorders of individuals with disabilities); serving on the program committee for dysphagia; serving on the board from 2004 until 2008, when she was the founding board member for specialty in swallowing and swallowing disorders; and serving as associate editor of a clinical forum on dysphagia management from 2005 until 2008. Tr. at 3289, 3290 (Sheppard), Def. Ex. 269.
Dr. Sheppard has published about 30 publications in the past ten years. Her publications include such issues as motor learning and negative eating behaviors of children; dysphagia in rare conditions; foreign body ingestion; intellectual and developmental disability; mealtime for adults with cerebral palsy; children with severe generalized cerebral palsy and children in school settings with disabilities; core curriculum for nurses of individuals with developmental disabilities; swallowing disorders for adults with developmental disabilities; and management and training. Tr. at 3290 (Sheppard), Def. Ex. 269. Dr. Sheppard has had academic appointments at Hunter College in New York for a program for teachers of children with disabilities. She was a distinguished lecturer for dysphagia in individuals with developmental disabilities at the University of Canterbury in New Zealand in 2009. She is the supervisor of infant evaluation clinic at the Teachers College at Columbia. She also served on the dissertation committee that addressed pediatric dysphagia. Tr. at 3291 (Sheppard), Def. Ex. 269.
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Dr. Sheppard’s first job was a speech pathologist at the Matheny School, a residential placement for children and adults with cerebral palsy. Since 1980, she has worked in congregate facilities as a consultant and speech pathologist in 11 states and 31 centers. Tr. at 3291, 3292 (Sheppard).
Dr. Sheppard has been qualified as an expert witness and has testified in three (3) cases, two in Connecticut and one in Pennsylvania. In the Pennsylvania case, she reviewed and testified as to the adequacy of swallowing management and eating disorders and nutritional management. In the two Connecticut cases, one was a similar CRIPA case and the other involved the adequacy of an individual’s swallowing and feeding management. Tr. at 3292, 3293 (Sheppard). Dr. Sheppard also worked as a consultant to Northern Virginia Training Center, during a CRIPA case. She was asked to review their nutritional management program and assist with the development of a plan “to the point of excellence” under a consent decree. Tr. at 3293 (Sheppard). Northern Virginia Training Center was released from that consent decree. Dr. Sheppard then reviewed all the other residential centers in Virginia. She explained her role as “looking for weaknesses in the programs and then working on filling in those gaps, increasing the strength and consistency of the programs.” Tr. at 3293 (Sheppard).
Dr. Sheppard reviewed CHDC’s nutritional management programs in 2004 to provide advice on strengthening its programs. She provides similar work in other centers such as in Iowa and New Jersey, and a number of other settings. Tr. at 3293, 3294 (Sheppard). Dr. Sheppard’s nutritional management specialty involves swallowing-related activities, including taking medications, oral hygiene, eating/drinking and saliva control. Tr. at 3294 (Sheppard).
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Mark Schmeler, Ph.D, OTR/L, ATP Defendants’ expert, Dr. Mark Schmeler, is an occupational therapist licensed in Pennsylvania. Tr. at 3448-3450 (Schmeler), Def. Ex. 160. He holds a master’s degree in occupational therapy from the State University of New York at Buffalo and a doctorate degree in rehabilitation science from the University of Pittsburgh. Tr. at 3448 (Schmeler); Def. Ex. 160. Dr. Schmeler is currently an assistant professor in the Department of Rehabilitation Science and Technology at the University of Pittsburgh and serves on the Ph.D. dissertation committee. Dr. Schmeler teaches courses related to assistive technology. He practices one day a week in the Center for Assistive Technology at the University of Pittsburgh Medical Center. He is also the Director of continuing education for his department, offering post-professional training to occupational therapists, physical therapists, and other healthcare professionals. He also manages some research projects related to pressure ulcers in nursing homes. Furthermore, he has a contract with the Veterans Affairs Administration to develop their polytrauma rehabilitation centers at four primary centers around the country. Tr. at 3448, 3449, 3451 (Schmeler); Def. Ex. 160. Dr. Schmeler specializes in assistive technology and within the area of assistive technology, he specializes in wheelchairs and mobility. Tr. at 3449 (Schmeler). Dr. Schmeler is a member of the American Occupational Therapy Association and the Rehabilitation Engineering Society of North America (RESNA). Tr. at 3450 (Schmeler); Def. Ex. 160. Dr. Schmeler is the Director of the International Seating Symposium, which is an annual wheelchair seating and mobility conference. He has worked in various countries including Brazil and Ireland on similar symposiums. Tr. at 3451 (Schmeler); Def. Ex. 160. He has also developed online training curriculums on fundamentals in assistive technology. Tr. at 3451, 3452 (Schmeler). Dr. Schmeler has had many publications; his most recent being a project
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“Looking at the effectiveness of using telehealth, telecommunications technologies to evaluate people for complex wheelchair seating and mobility interventions.” Tr. at 3452 (Schmeler); Def. Ex. 160.
Dr. Schmeler also has extensive experience working with government agencies. In addition to his work with Veteran Affairs, he has served on expert panels for CMS on policies for wheelchair seating and mobility. Tr. at 3452, 3453 (Schmeler).
Andrew Jinks, SLP, CCC/SLP, ATP Defendants’ expert, Mr. Andrew Jinks, is a speech language pathologist, licensed in Pennsylvania. Tr. at 3529 (Jinks); Def. Ex. 201. Mr. Jinks holds a master’s degree in speech pathology from Bowling Green University and he did his residency at Duke Medical Center. He also has done doctoral study in speech pathology at Kent University. Tr. at 3529 (Jinks); Def. Ex. 201. Mr. Jinks is employed at the Centers for Rehabilitation Services, where he provides outpatient rehabilitation services. He is also employed at the Center for Assistive Technology, where he provides augmentative communication evaluations, therapy, and training. Tr. at 3529 (Jinks); Def. Ex. 201. Mr. Jinks is an adjunct faculty member at the University of Pittsburgh. He supervises students and has taught courses in neurogenics, speech language pathology, and augmentative communication. Tr. at 3529, 3530 (Jinks); Def. Ex. 201. Mr. Jinks is a member of the American Speech Language Hearing Association and the Pennsylvania Speech Language Hearing Association. Tr. at 3530 (Jinks), Def. Ex. 201. Mr. Jinks is a published author and has presented a paper to the Augmentative and Alternative Communication Journal regarding consumer response to augmentative communication at a facility. Tr. at 3531 (Jinks), Def. Ex. 201. His professional background is focused in the area of rehabilitation for individuals with
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neurogenic communication disorders. His expertise is in the specialized area of augmentative communication including evaluation, therapy, and training. Tr. at 3530 (Jinks).
Pamela Girvin Hackett, MPT Defendants’ expert, Ms. Hackett, is a licensed physical therapist. She received her bachelor’s degree in pre-medicine from Franklin and Marshall College and a master’s degree in physical therapy from the University of Delaware. Tr. at 4812 (Hackett), Def. Ex. 184. Ms. Hackett’s current position is the managing partner of Pediatric Therapeutic Services, which provides therapy services to education-based programs throughout southeastern Pennsylvania. Tr. at 4813 (Hackett), Def. Ex. 184. As managing partner of Pediatric Therapeutic Services, Ms. Hackett oversees the quality and delivery of therapy services to approximately 5,000 school children and at times she provides actual physical therapy consultation. Tr. at 4813 (Hackett); Def. Ex. 184. Ms. Hackett is a guest lecturer at the Widener University doctoral program for physical therapy and provides continuing education to both educators and therapists for school aged programs. Tr. at 4813 (Hackett); Def. Ex. 184. Among her publications, Ms. Hackett has written a chapter for a university textbook for master’s and doctoral programs for pediatric physical therapy. She published two articles in the last year for the Exceptional Parent magazine; and publishes in the Nemours Foundation Guide to Children’s Health. Tr. at 4813, 4814 (Hackett); Def. Ex. 184.
EXPERT METHODOLOGY Defendants’ experts’ findings and conclusions are more credible and should be given
more weight than Plaintiff’s expert’s findings and conclusions. Defendants’ experts are also
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more credible because they used appropriate scientific methodology, whereas Ms. Crawford lacked any concrete methodology in her review of services at CHDC.
Mrs. Crawford’s report states in her introduction that she describes her methodology used for her review, but there was no section on methodology in her report. Tr. at 4282 (Kastner).
Ms. Crawford, basically selected individuals to review as she made her on-site observations. She was asked by the Plaintiff “to look at physical and nutritional management services and therapy services that included OT, occupational therapy, physical therapy, and speech language pathology.” Tr. at 2740 (Crawford). However, her methodology for reviewing these areas was flawed. She did not observe any staff training on eating. Tr. at 2907 (Crawford). She did not specifically interview any staff as to their understanding of the various terms of specific plans. Tr. at 2907, 2908 (Crawford). Nor did she observe the dysphagia committee in operation. Tr. at 2908 (Crawford). Ms. Crawford did not use any particular instruments to measure the health, welfare or wellness of any individual. Tr. at 2914, 2915 (Crawford). She did not even request all relevant records for preparation of her findings. Tr. at 2907 (Crawford). Ms. Crawford had no benchmarks for the various health indicators that she stated required tracking, such as pneumonia, aspiration, nutrition, choking, mortality, decubitus, osteoporosis, et cetera. Tr. at 2918 (Crawford). As to Ms. Crawford’s flawed methodology, Defendants’ expert, Dr. Kastner, observed:
Ms. Crawford identified no sample prospectively as to what she wanted, what data she wanted to collect. She identified no care practices that she wanted to examine. She identified no standards for those care practices. She identified no outcomes for those care practices or any benchmarks against which those outcomes would be compared. Her evaluation appeared to be based in identifying a group of outliers which she identified using the risk assessments provided to her by the facility and going through those outliers to identify any potentially poor outcomes, to then highlight those outcomes in her report and make a representation that those poor
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outcomes for those outliers represented the pattern of care in the facility, which again, I believe is a completely inappropriate approach to making a representation about a pattern of care.
Tr. at 4273-4274 (Kastner).
More troubling was the way Ms. Crawford conducted her observations by interacting
with the very people she was observing. When asked whether her interactions with clients at
CHDC impacted her observations of the very people she was trying to review, Ms. Crawford
replied:
Well, when I go into a facility, I again, like to interact with people as people and I like to see how they respond and communicate and interact as a – because I care about them as people. So I – I don’t see that as inappropriate.
Tr. at 2931 (Crawford).
Another of Plaintiff’s own experts, Dr. Matson, explained that when he conducts his
reviews, he does not interact any more than necessary with the residents because it might upset
them and might actually alter the representativeness of his observations. Tr. at 1262, 1263
(Matson). Defendants’ expert, Dr. Kastner, felt that Ms. Crawford and Ms. Osgood were
particularly disruptive during their tours at CHDC and that had an effect on the quality of their
observations. Tr. at 4058 (Kastner).
So, for example, during meals -- this is a simple -- it's no big deal. Client has very severe spasticity, and he cannot grasp a cup. His hands are flexed, which means they are bent to the wrists, and they are rotated externally, which means they are turned outwards, which leaves only his wrists to oppose each other. And he uses the back of his wrists to grasp a cup and to lift it to his mouth and drink. Obviously, it's a challenge for this person to drink, but he can drink independently. Ms. Crawford was interacting with him during his attempt to drink. He smiled up at her, and he turned his head, and he dumped all the meal all over himself. And he was perfectly happy to get the attention. But it didn't represent much of an opportunity to observe him feeding and certainly wouldn't be the
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basis for drawing any conclusions about feeding practices at the facility.
Tr. at 4058 (Kastner).
Ms. Crawford would go in and in a very general way just say, "Hi, I'm Carly." I'm here to do whatever. Some rooms she had clearly identified the clients she was looking for. So in one instance, she walked into the room and said to no one in particular, "Where is L.?" Well, that's like an alarm going off, you know, particularly in the settings where there are the younger clients, who have very strict behavioral programming. That is a cue for people to begin to misbehave. It's like watching the balls on a pool table when the cue ball hits them, and all of a sudden they are going in all kinds of different directions. In my notes -- I'm not going to read them -- there might be a description of what happened in that room when she walked in and asked for L., and L. immediately knew that it was -- it was an opportunity for him to make mischief. There were two different occasions where she spoke to a client, talked to them about, "Why are you here? What do you want to do? Do you want to go outside?" And the client left. Then all of a sudden the staff have to scramble, because now they have someone that's supposed to be doing something else. She may not understand that her interaction with that client provoked that behavior. But it was clear to me that there was a causality to what happened during the tour. And that has an effect on the observations that occurred.
Tr. at 4059 (Kastner).
There was a client who had a communication board. She was in a wheelchair with a tray and the board, and she uses the board to communicate. And she has trouble moving her body and turning her head and looking. The appropriate way to address her would be to stand in front of her so that she can see you and interact with you and the board at the same time. But Ms. Crawford approached her from behind, addressed her over her left shoulder. And the client found that frustrating, because the client couldn't simultaneously turn and maintain a position in her chair and interact with Ms. Crawford and use the communication board effectively. Again, those types of events occurred fairly regularly.
Tr. at 4060 (Kastner).
As Dr. Kastner noted further, from his touring with Ms. Crawford:
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So, for example, when she walked into the room with the younger residents and sat down on the couch next to T.C. or L.W. -- it is in my notes somewhere -- I can’t remember -- and moved his personal objects and gave her pen and paper to him and started looking through his books, it was a serious disruption in the behavioral programming, not only for that individual, but for everyone else in the room who wanted to be treated equally. So that day in particular was a very difficult tour, because it became so disruptive that she was asked to leave. And it was only after persistent requests from the staff through Mr. Zaycosky that she eventually agreed to leave, and at that point threw her hands up and said, “I’m done touring,” even though we were scheduled to go to another setting. She just went back to the visitors’ room, I think where the DOJ staff were.
Tr. at 4061 (Kastner).
Ms. Crawford also did not perform any hands-on assessments to determine optimal or
proper alignment. Tr. at 5287, 5288 (Hancock). Dr. Kastner noted that Ms. Crawford did no
formal assessment of any resident at CHDC and, therefore, Ms. Crawford cannot attribute any
harm that would result from the alleged practices she claims to have observed. Tr. at 4285-4288
(Kastner). Thus, while she was quick to criticize an individual’s position as improper, without
assessment, she could not possibly make a finding on any individual’s ability to conform to a
different alignment or position. Treating professionals at CHDC had made such assessments.
Dr. Kastner stated that Ms. Crawford did not track any outcomes at CHDC and offered
no benckmarks for evaluating the appropriateness of outcomes. Tr. at 4281 (Kastner).
Dr. Kastner further described the bias of Ms. Crawford’s sample as follows:
That sample was not drawn on a random basis. Again, for her consideration, she used the documents provided by the facility to identify individuals at greatest risk, whether they were the, as we saw in trial, the list of individuals who were hospitalized, risk of -- individuals who were at risk of dysphagia, a list of individuals who were at risk of fracture due do osteoporosis. Her focus was on the high-risk individuals, the individuals most likely to have poor outcomes. I don't think the process of collecting data would lead in any
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fashion to any reasonable assessment of the pattern of care. Tr. at 4284-85 (Kastner).
Contrary to Ms. Crawford, Defendants’ experts used a much more objective methodology in conducting their reviews. Each expert focused on specific areas of expertise, and comprehensively and extensively conducted on site visits, staff interviews and document review.
For example, Defendants’ expert, Dr. Sheppard, toured CHDC twice, three days in November 2009 and one day in March 2010. Tr. at 3299 (Sheppard). She visited fourteen sites on campus, including review of breakfasts, lunches and dinners at the residences. She observed medication passes, canteen meals, and classroom snacks. Tr. at 3299, 3300 (Sheppard). Dr. Sheppard reviewed samples of the population at CHDC, that is, adults and children; medically fragile; ambulatory and non-ambulatory; tube fed and independent eaters. She testified, “I selected a range of sites to give me those views and also to give me views of all the different types of eating environments.” Tr. at 3300 (Sheppard). Dr. Sheppard reviewed twenty-three resident charts and observed eighty-five residents at these various sites. Tr. at 3300, 3301, 3373 (Sheppard). Dr. Sheppard reviewed all the mealtime plans and diets for the individuals she observed. Tr. at 3301 (Sheppard). She interviewed CHDC administrators, PTs, OTs, SLPs, resident staff, infection control members, and the Chair of the Central Dysphagia Committee. Tr. at 3300 (Sheppard). Dr. Sheppard reviewed various documents including policies, procedures, guidelines that related to swallowing and dysphagia, and management of swallowing and dsyphagia. She reviewed dental care documents as well. Tr. at 3301 (Sheppard).
Defendants’ expert, Dr. Schmeler, toured CHDC in March 2009. He specifically toured the physical therapy clinic, physical therapy orthotics shop, and visited various homes to observe the residents. He also reviewed various documents including the Occupational Therapy Policies
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and Procedures Manual, the physical therapy assessment forms, and the adaptive equipment forms. Tr. at 3453, 3454 (Schmeler). Dr. Schmeler made observations of 10 CHDC residents. Tr. at 3454, 3455 (Schmeler). He did not use outcome-based quantitative data for his review of CHDC because, as he testified, “the population I was looking at was not cognitively intact enough or nonverbal.” Tr. at 3496 (Schmeler). Dr. Schmeler considered comments and opinions of treating professionals, but made his own determinations and findings. Defendants’ expert, Mr. Jinks, reviewed the speech language pathology portions of medical records. He also made observations while on site. Mr. Jinks observed four residents while on site at CHDC: A.J., S.B., K.F., and C.M. Tr. at 3531, 3532 (Jinks). The focus of Defendants’ expert Ms. Hackett “was to look at the management of the physical therapy program and to assess specifically the positioning programs and the seating and positioning for the residents.” Tr. at 4814 (Hackett). Ms. Hackett spent two days on site at CHDC. She interviewed staff and observed residents’ physical reassessments. She conducted some physical assessments to determine whether or not the positioning equipment and program were appropriate. Tr. at 4814 (Hackett). Ms. Hackett reviewed approximately one hundred positioning programs. She reviewed specific positioning programs in greater detail for those whose positioning was questioned by Plaintiff’s expert, Ms. Crawford. She reviewed approximately nineteen (19) individualized positioning programs. Tr. at 4814, 4815 (Hackett). Ms. Hackett reviewed eight (8) residents in greater detail. Tr. at 4816 (Hackett).
Generally, the Defendants’ experts reviewed individual residents in response to Ms. Crawford’s findings. Individuals were also selected for independent review. Each of Defendants’ expert’s review was within his or her area of expertise. Collectively, they presented a much more balanced and comprehensive review than that of Ms. Crawford.
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EXPERT STANDARDS There is no evidence that CHDC substantially departed from any accepted professional
standard in the areas of habilitation, nutritional management, communication and speech therapy, physical therapy, occupational therapy, and oral hygiene. The Plaintiff’s expert, Ms. Crawford, used her own personal opinion and no formalized instruments or methods when conducting her review. She provided no particular accepted professional standards that the Defendants are failing to follow. Furthermore, Ms. Crawford provided testimony on what she considered to be best practices. At trial, the Defendants’ experts presented various accepted professional standards. They found that CHDC meets or exceeds those standards. They found no departures from any accepted standards. Treating professionals at CHDC are exercising professional judgment. See generally Tr. at 2739-2968, 3287-3406, 3411-3448, 3448-3528, 3528-3562, and 4812-4850 (Crawford, Sheppard, Sheppard, Schmeler, Jinks, Hackett).
Ms. Crawford seemed to review CHDC with a presumption that she would find deficiencies. She testified that she found some deficiencies in every facility she has reviewed. Tr. at 2903 (Crawford). Ms. Crawford could not articulate any specific professional standard, guideline or benchmark which she used to formulate her conclusions; rather, she used general propositions to guide her review. She stated: “I developed [and] I verbalized them and put them down on paper as a reflection of my experience as an occupational therapist, as a team member on a physical nutrition management team and my experience across a wide number, a large number of facilities.” Tr. at 2909, 2910 (Crawford). Ms. Crawford did not use any formalized instrument to assess whether there was compliance with any of her general propositions. Tr. at 2910 (Crawford). Her general propositions allegedly represent what she sees “customarily” in
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her experience and in her “experience visiting other facilities” and her “personal experience as a clinician.” Tr. at 2911 (Crawford). Ms. Crawford’s general propositions have not been peerreviewed in any manner. Tr. at 2911 (Crawford). Ms. Crawford has not published her general propositions anywhere. Tr. at 2911 (Crawford). Defendants’ expert, Dr. Kastner explained:
I’m not in favor of going in, saying here's your policy and you didn't comply with it, and therefore you violate professional standards. That is just not reasonable, especially at a facility like Conway that takes a more contemporary approach to quality management.
Tr. at 4019 (Kastner). Ms. Crawford used her own “general propositions to conduct her review, but Dr. Kastner
stated that these were not peer-reviewed and did not reflect the “opinion of any professional group, any association, or any prefession.” Tr. at 4278 (Kastner). Further, Ms. Crawford’s findings were not based on substantial departures of professional care, as she used “best practices” as a threshold. Stated differently, Ms. Crawford applied an optimal standard. She agreed that she applied a standard that care be optimal for each individual. Tr. at 2910, 2911 (Crawford).
Ms. Crawford defined a guideline as something that is not “written in stone. It is a suggested practice.” Tr. at 2911 (Crawford). Ms. Crawford defined a policy as “more specific procedures … there would be stricter adherence.” Tr. at 2911 (Crawford). Professionals have more latitude in implementing a guideline and less latitude in implementing a policy. Tr. at 2911, 2912 (Crawford).
Ms. Crawford discounted or disregarded CHDC’s adherence to ICF/MR regulations and did not apply the ICF/MR standards in her review of CHDC. Tr. at 2913 (Crawford). She testified that she does not look at ICF/MR regulations routinely and agreed that she is not
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intimately familiar with the regulations. Tr. at 2913 (Crawford). Ms. Crawford agreed, however, that ICF/MR standards articulate some standards of care. Tr. at 2914 (Crawford). Ms. Crawford is aware that CHDC is fully certified by CMS. Tr. at 2914 (Crawford). Ms. Crawford did not consider CARF standards in her review of CHDC. She did not even know if CARF standards would cover her review. Tr. at 2913 (Crawford). Ms. Crawford was not familiar with the JCAHO standards and did not know if JCAHO standards would have any relevancy to an ICF/MR setting. Tr. at 2913, 2914 (Crawford).
In contrast to Ms. Crawford’s personal opinion approach, Defendants’ experts relied on concrete mainstream accepted professional standards in the fields of nutritional management, communication and speech therapy, physical therapy and occupational therapy, and oral hygiene. Because of their specialized and highly qualified backgrounds, Defendants’ experts are more aware of the accepted professional standards in their respective fields.
Dr. Sheppard explained that best practice in the field of nutritional management is evidence based, that is, there has been research to demonstrate the practice. In addition, the quality of life as it relates to the individual must be considered along with the individual’s particular needs, strengths and weaknesses. Various professionals, an interdisciplinary team, work together to develop the best possible program. Tr. at 3296-3298 (Sheppard). “And then accepted professional practice is more of a typical rather than the sign of excellence, but is a more typical practice in a profession. And it has elements of the best practice, but they may not be applied as consistently across all individuals ….” Tr. at 3298 (Sheppard).
As stated by Dr. Sheppard: “…minimally accepted professional practice doesn’t necessarily consider quality of life. You really are mostly concerned with health and safety issues and the programming is often generalized, not individualized.” Tr. at 3298 (Sheppard).
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Dr. Sheppard applied the following standards: best practice; accepted practice; minimally acceptable practice; and failing. Dr. Sheppard did not find any failings in the areas she reviewed. Dr. Sheppard applied the standards as practice standards. The standards she applied were process based, with an outcome side. “In other words, you don’t evaluate both process and outcome at the same time … it’s an attempt to look at a complex structure and not put a single label on the whole structure when there are complex things going on.” Tr. at 3359-3361 (Sheppard).
If you fail the minimally accepted standard, there is harm. Such harm includes physical as well as other types of harm. Tr. at 3362 (Sheppard) . “[I]f a facility violated a standard of practice as a matter of course, as a matter of what they did, then that also would fail to meet acceptable standards, minimum accepted professional practice.” Tr. at 3363, 3368, 3369 (Sheppard). “In dysphagia, the breaking of a minimal standard is one where there is -- harm occurs. But not only harm occurs, but harm occurs as a matter of -- harm occurs because of a missed practice, if you -- if you will.” Tr. at 3368 (Sheppard).
Dr. Sheppard does not always find that facilities meet acceptable professional standards. Dr. Sheppard found a facility in another state that failed in nutritional management. “I found substantial failure, and I put that in my report.” Defendants’ lead counsel, Tom York, in that matter was the same defense lead counsel in this matter. Tr. at 3441, 3442 (Sheppard). As a result, Dr. Sheppard has evidenced great integrity and honesty in her reviews.
CHDC PROFESSIONALS QUALIFICATIONS, TRAINING, AND RATIOS CHDC professionals in the areas of habilitation, nutritional management, communication
and speech therapy, physical therapy and occupational therapy, and oral hygiene are qualified and well trained. They are exercising professional judgments.
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Cynthia Johnson is a clinical speech pathologist at CHDC. Tr. at 5386 (Johnson). Ms. Johnson holds an undergraduate degree in speech pathology from the University of Central Arkansas, with a minor in special education, and a graduate degree in speech pathology from Memphis State University. She also has a teaching certificate in special education; and has postgraduate hours in special education from Vanderbilt University. Tr. at 5386, 5387 (Johnson). Ms. Johnson is licensed by the State of Arkansas and has a certificate of clinical competence from the American Speech Language and Hearing Association. Tr. at 5387 (Johnson). Ms. Johnson has worked at CHDC for 29 years. She provides clinical services and clinical therapy. Her case load includes speech language and dysphagia services. She provides in-service training and represents speech services administratively at various meetings. Tr. at 5387 (Johnson). The quality of speech language pathology department personnel meets professional standards with respect to credentials for their positions. Tr. at 3539 (Jinks).
Alesea Holbrook is the Director of Dietary Services at CHDC. Tr. at 5316 (Holbrook). Ms. Holbrook holds a bachelor’s degree in dietetics from Texas Women’s University. She is a registered dietician with the American Dietetic Association and licensed by the State of Arkansas. Tr. at 5317 (Holbrook). Ms. Holbrook’s work experience includes working as a clinical dietician at a hospital and providing clinical services at CHDC. She has been employed at CHDC for 26 years. Tr. at 5317 (Holbrook). Ms. Holbrook’s main responsibility at CHDC as Director of Dietary Services is working with the clinical services. She also oversees the food service department, which ensures residents receive the correct diets. Tr. at 5317 (Holbrook). The Dietary Department provides competency-based training. Such training is provided in their annual retraining and also during every employee’s Phase I initial training. Dietary mixes, the
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actual thickening of a variety of liquids, are required to be approved by Ms. Holbrook or a speech pathologist. Tr. at 5320 (Holbrook).
Staff training in nutritional management consists of one (1) week of classroom and two (2) weeks on-the-job training for newly hired employees. Competency-based training is 2/3 of the training. Tr. at 3325, 3326 (Sheppard). For new hires there were training sections on nutritional management, dietary, oral hygiene, choking, medication administration, and meal service. There were specific competency-based trainings for thickening of liquids. Nurses are also educated on the risk assessment for pneumonia, monitoring for tardive dyskinesia, administration of medication, and enteral feeding and tube feeding. Nurses are also trained on thickening liquid medication. Tr. at 3326 (Sheppard). When mealtime plans are changed, the specialists make the changes and train the residential supervisors who in turn train the direct care staff. Tr. at 3326, 3327 (Sheppard).
CHDC considers the proper mealtime procedure and the thickening of liquids an important matter. The Superintendant holds staff accountable for improper mealtime occurrences. P. Exh. AAH 4. Dysphagia training is provided to new employees. The training covers such issues as signs of silent aspiration, thickening of liquids, and use of adaptive equipment. It also calls attention to the individual eating plans. Tr. at 5396 (Johnson).
Dr. Sheppard found that the staff training was an accepted professional practice model, and maybe with respect to the frequency of direct care training a minimally accepted level. Tr. at 3328 (Sheppard). The two (2) weeks on-the-job training was best practices model. Tr. at 3329. The nurse training and retraining is a best practices model. Tr. at 3329 (Sheppard). The interim training that occurred when there was a mealtime change “certainly meets minimally acceptable standards.” Tr. at 3329 (Sheppard).
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DOJ counsel questioned Dr. Sheppard as to the level of complexity of the 2007 nutritional management PowerPoint presentation materials with respect to the competency-based questions in Plaintiff’s Exhibit 1052-1, and DOJ counsel implied that the answers were obvious and did not establish competency. Dr Sheppard replied that the questions were not “obvious at all.” Tr. at 3390-3393 (Sheppard). Training as to the mealtime liquids is done by the dietician when it is a pre-service or repeat service training and by the residential supervisors when there is a meal plan change. Tr. at 3394 (Sheppard). The professional staff train the residential supervisor and the supervisor would then train the direct care staff. Tr. at 3394 (Sheppard).
Approximately eighty (80) individuals at CHDC receive direct speech therapy. Tr. at 5420, 5421(Johnson). Mr. Jinks observed an initial orientation regarding communication to new staff while he was on site. The training provided by the speech language pathology assistant covered issues from swallowing, use of sign language, general communicative interaction, as well as some on communication devices, and other systems. The initial orientation was adequate. Tr. at 3531, 3536 (Jinks). Mr. Jinks found that the quality of speech language pathology staff department personnel meets professional standards with respect to credentials for their positions. Tr. at 3539 (Jinks).
CHDC provides in-services on augmentative communication and on dysphagia. Training occurs during Phases I and II training. A speech aide conducts the training and a certified clinician also attends the training. Tr. at 5389, 5396 (Johnson). The speech aide who provides the speech and dysphagia training is certified by the Arkansas Department of Human Services. She has 33 years of experience working with those with developmental disabilities and a number of years working under the supervision of speech language pathologists. Tr. at 5396, 5397 (Johnson). Mr. Jinks found that it is fine that Ms. Wheeler conducts general staff training on
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augmentative and adaptive equipment, even though she is not a licensed speech language pathologist. Tr. at 3559 (Jinks). Supervisor training with respect to speech services has been procedure review. However, competency-based training is being implemented. Tr. at 5398 (Johnson). All the speech language clinicians have received at least one college level course in sign language. Tr. at 5389, 5390 (Johnson).
Lisa Hancock supervises the physical and occupational therapy (PT and OT) departments, as well as the physical therapy orthotics shop at CHDC. Tr. at 5249, 5250 (Hancock). Ms. Hancock provides direct care to residents on her caseload. Tr. at 5249, 5250 (Hancock). Ms. Hancock holds a bachelor’s degree in physical therapy from the University of Central Arkansas and she is licensed by the State of Arkansas as a physical therapist. Tr. at 5250 (Hancock). Ms. Hancock routinely participates in continuing education to maintain her physical therapy license in Arkansas. Tr. at 5250, 5251 (Hancock). Ms. Hancock began her career a CHDC as a staff therapist. Tr. at 5251 (Hancock). There is the equivalent of three (3) full-time therapists in the physical therapy department. Tr. at 5252 (Hancock). There are also two (2) physical therapy aides in the physical therapy department. Tr. at 5252 (Hancock). Additionally, there are two physical therapy assistants in the physical therapy department. Tr. at 5252 (Hancock). Ms. Hancock keeps track of whether all the physical therapists have their continuing education courses up to date. Tr. at 5252 (Hancock).
A physical therapy aide is an unlicensed person that serves specific functions within the department that have been instructed to them through in-service training, on-the-job training. Unlike the physical therapist assistant, they have a license and degree, educational background in the field. The difference being that the physical therapist aide can only do certain things as long as they are supervised by the minimum of a physical therapist assistant on grounds. Tr. at 5252 (Hancock).
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The PT aides have a very hands-on relationship with the clients, and they are with the clients on a regular basis working on maintenance programs or delivering or replacing equipment. Tr. at 5253 (Hancock). Physical therapists and physical therapy aides and assistants all check to see if direct care staff is properly lifting and adjusting the client. Tr. at 5253, 5254 (Hancock).
Direct care staff is trained on physical therapy and related services in Phase I and II training. They then work on a regular basis with the PT staff on proper lifting techniques. Phase I PT training takes four (4) to four and a half (4 ½) hours. During that time, transfers, mechanical lifts, adaptive equipment, et cetera are taught. Tr. at 5254, 5261 (Hancock). A licensed physical therapist or a physical therapist assistant provides the PT training in Phases I and II training. Tr. at 5289 (Hancock). Therapists maintain their continuing education requirements and attend local and national conferences. Tr. at 3459 (Schmeler).
If a PT staff notices that a direct care staff is performing an improper lift or if there may be imminent danger, they stop the lift from taking place. If they feel the lift can be done better, they suggest in-servicing. Tr. at 5254 (Hancock). If PT staff made an observation that a lift or positioning was improper after having previously been corrected, the PT would report back to the PT therapist or assistant so that continued in-service could take place and correction could be made. Disciplinary action would take place if the problem persisted. Tr. at 5255 (Hancock).
A spot check is when a physical therapist or physical therapist assistant pops into a residence and watches a transfer take place unannounced, or if there’s not a transfer going on, we can give them a task and say we’d like to see a two person lift from this couch to this, and then we will check their technique. And if they follow all of the established guidelines that we provided them with in the past, and then at that point if we see anything that needs to be addressed there on the spot, then we provide immediate inservicing there. And the form that’s used is one that can be documented as an in-service training as well.
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Tr. at 5262 (Hancock). If spot checks revealed a pattern of techniques that could be improved, an in-service would be held for the entire unit. Tr. at 5263 (Hancock). The PT Department performs periodic spot checks in the residences, to check on proper positioning and make any corrections. The therapist communicates directly with staff. Ms. Hancock has requested that the physical assistants perform spot checks on a regular basis, and that a minimum of two (2) take place each day. She has requested that follow-ups take place, and any additional in-servicing takes place if needed. Tr. at 5294-5296 (Hancock). While this is not more formal training, it is still training. Tr. at 4847 (Hackett).
23. HABILITATION, NUTRITIONAL MANAGEMENT, COMMUNICATION AND SPEECH THERAPY, PHYSICAL AND OCCUPATIONAL THERAPY, AND ORAL HYGIENE PROFESSIONAL JUDGMENT AND ACCEPTED PROFESSIONAL STANDARDS
The trial testimony and exhibits demonstrate that CHDC professionals are exercising professional judgments in their provision of care to CHDC residents. No evidence has been presented by the Plaintiff to suggest a substantial departure from any accepted professional standard in the areas of habilitation, nutritional management, communication and speech therapy, physical therapy and occupational therapy, and oral hygiene. To the contrary, the evidence supports the findings that CHDC meets or exceeds accepted professional standards in these areas. As discussed below, CHDC provides habilitation, nutritional management, communication and speech, physical and occupational (physical management), and oral hygiene services and therapies. No evidence has been produced, except perhaps isolated incidents, as to any harm to residents due to lack of any such services and therapies.
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HABILITATION CHDC meets or exceeds accepted professional standards in its provision of habilitation
maintenance and skill development. CHDC provides habilitation to its residents. Most habilitation and training classes at CHDC include daily living skills, fine gross motor development, and sensory development. Habilitation classes are held apart from the special education classes. Children receive habilitation classes during school hours in the special education classrooms taught by special education teachers. Tr. at 1658, 1665 (Price). No evidence was presented at trial to suggest that CHDC was in substantial departure of any accepted professional standard with respect to habilitation.
Dr. Matson seemed critical of some of the residents’ job tasks. When asked if he knew that the sorting of rocks, sorting and labeling of mineral samples, was for a contract with a local college geological department, Dr. Matson said it was “typical.” Tr. at 1266 (Matson). However, he could not have made any determinative finding as to habilitation as he did not interview any staff to determine whether the activities were related to residents’ IPPs. Tr. at 1266, 1267 (Matson). He also did not compare the activities with any individual IPPs. Tr. at 1267 (Matson).
NUTRITIONAL MANAGEMENT The Constitution requires the management of nutritional status of residents at CHDC
pursuant to the exercise of professional judgment which is consistent with accepted professional standards of practice. U.S. v. Commonwealth of Pennsylvania, 902 F. Supp. 565, 611 (W.D. PA 1995), aff’d. U.S. v. Ridge, 96 F.3d 1436 (3d 1996) citing Youngberg v. Romeo, 457 U.S. 307, 323 (1982). As detailed below, CHDC provides the exercise of professional judgment consistent with accepted professional standards of practice with respect to screening, assessment,
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monitoring, and provision of care in its management of the nutritional status of its residents. No system harm, or pattern or practice, have been shown to be due to lack of any such nutritional management.
GENERAL NUTRITIONAL MANAGEMENT Dr. Sheppard found that CHDC’s overall nutritional management program meets accepted professional standards. Tr. at 3351 (Sheppard).
[I]f you looked at this program from top to bottom, that is was -- it was right in there with what the standards are for management in a -- of people with developmental disability in any setting. Tr. at 3351 (Sheppard). Nutritional Management is applied to a large number of CHDC residents. Ninety-eight percent (98%) of residents at CHDC require diet modifications. Tr. at 3303 (Sheppard). Sixtytwo percent (62%) of the population has reflux precautions. Tr. at 3305 (Sheppard). Plaintiff’s expert, Dr. Matson, did not know what percentage of people at CHDC have eating problems. Tr. at 1275 (Matson). Thus, he is not fully informed to make any determinations on CHDC’s nutritional management. CHDC provides assessments and offers studies to determine each individual’s nutritional management needs. Each specif ic assessment and study is identi fied in the specif ic sections below (sections on dysphagia, pneumonia, choki ng incidents and difficult swallowing events, mealtime and meal plans, and adaptive equipment). General descriptions as to ass essments and modified barium swallows are as follows.
Assessment
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CHDC is aware of its residents’ nutritional needs. One indicator of nutritional status is an individual’s weight. Weights are monitored weekly or monthly, and heights are monitored quarterly. Individuals are reweighed if there is a discrepancy in excess of five (5) pounds. A trained dietary technician participates in weighing individuals. Tr. at 3320 (Sheppard). Other indicators are discovered through assessment. Nutritional assessments are conducted annually for everyone, those with and without problems. Dr. Sheppard noted that: “And that’s really best practices model.” Tr. at 3320 (Sheppard). Individuals at CHDC are assessed by the Dietary Department for nutritional status a minimum of one time a year. They are assessed more often if requested by the physician, the team, or as a need may arise. Tr. at 5317 (Holbrook). Dr. Matson referred to assessment scales for eating problems, but he did not assess and is not aware of anyone at CHDC who has suffered physical harm as a result of not having such observation methods used for their eating problems. Tr. at 1275, 1276 (Matson). Thus, his suggestion should be discounted.
CHDC uses barium swallows as a form of assessment and monitoring of an individual’s nutritional status. Barium swallows have to be ordered by a physician. Tr. at 2934 (Crawford). Barium swallows have to be coordinated with the local hospital. Tr. at 2934 (Crawford). There can potentially be some delay of the test if the hospital does not have availability. Tr. at 2934 (Crawford). However, possible delay does not hinder the usefulness of the swallow study as an assessment tool and has not hindered anyone’s care at CHDC. Ms. Crawford did not know how long it would take for an individual in the Conway community to get an appointment for a barium swallow. Tr. at 2935 (Crawford). Thus, there is no indication that any potential delay is unreasonable.
The modified barium study is used as an integral part of management for people with swallowing disorders at CHDC. And
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in that year, 2009, 33 percent of the population had gone out for these studies either responsive to changes in their levels of choking or pneumonia risk or in response to actual pneumonia episodes or choking episodes. And in the studies, there is an indication that this was -- these were valid referrals, is that the studies revealed abnormal swallowing in 91 percent of that 33 percent, so that they were appropriate.
… That’s a pretty good level of positive results, that there were problems that were identified in that - - in those studies. And then the interventions for that person - - appropriate diets, appropriate feeding strategies - - were developed out of those, with those studies as the database for making the appropriate decisions.
Tr. at 3305 (Sheppard).
Dr. Sheppard stated that CHDC’s use of the modified barium swallow and consultations
are an integral part of their management program and “was a best practice model.” Tr. at 3312,
3328 (Sheppard). A speech pathologist would go along with the individual for his/her modified
barium swallow at Conway Regional Health System. A community medical speech pathologist
would also provide consultation to advise on management of swallowing issues. Tr. at 3324
(Sheppard). The videofluoroscopy is conducted by both a radiologist and a medical speech
pathologist, which is standard practice. Tr. at 3325 (Sheppard). The modified barium swallow
report would go back with the individual that day and, “within 24 hours of the resident’s return,
the primary physician enters the chart note, which changes any practice, management of the
individual … it’s very quick turn around of information and implementation of this change in
practice.” Tr. at 3324, 3325 (Sheppard).
Dietary services are involved in swallow studies after notification by the speech
pathologist of completion of the study at the hospital. Records, reports, and recommendations
are sent to the Dietary Department for review and implementation. Tr. at 5317, 5318
(Holbrook). Per the barium swallow results, Ms. Holbrook marks any equipment changes on the
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diet sheets, and the occupational therapist or the speech pathologist takes the equipment into the units and provides the training. Tr. at 5318 (Holbrook).
Regarding nutritional management, Ms. Crawford claimed there were a number of residents who would benefit from a physical and nutritional support team, but she did not perform any assessments at CHDC to determine if they would actually benefit from such a team. Tr. at 2919, 2920 (Crawford). Dr. Kastner stated that the ICF/MR regulations do not require a physical and nutritional management team as recommended by Ms. Crawford. Tr. at 4280 (Kastner). Thus, her suggestion should be discounted. Ms. Crawford could not offer even a single reference to support her opinion that her physical and nutritional management approach should be used at CHDC. Tr. at 4030 (Kastner).
DYSPHAGIA CHDC exercises professional judgment with respect to assessment and management of dysphagia. Except for some isolated incidents, no examples of harm due to lack of dysphagia management have been proven. CHDC provides comprehensive dysphagia management guidelines. CHDC has guidelines for management of dysphagia in individuals with swallowing and feeding disorders. CHDC’s guidelines for management of dysphagia are a quality of life document as well. Tr. at 3306 (Sheppard); Def. Ex. 347. CHDC’s guidelines for management of dysphagia outline criteria and very specific procedures. Dr. Sheppard found the guidelines to be a “comprehensive policy for managing dysphagia and for individual care”. Tr. at 3306, 3307 (Sheppard); Def. Ex. 347. CHDC’s guidelines for management of dysphagia certainly meet accepted professional practice as found by Dr. Sheppard. “And in some respects were best practice.” Tr. at 3311,
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3312 (Sheppard); Def. Ex. 347. The concern for quality of life was “best practice quality.” The standardized tools for the modified barium swallow were at least accepted professional standards. The procedures regarding timelines and responsibility of timelines and the reflux precautions met accepted professional standards. Tr. at 3312, 3313 (Sheppard). Dr. Kastner testified that gastroesphageal reflux is appropriately managed at CHDC. Tr. at 4078 (Kastner). He also felt that dysphagia and feeding practices were appropriately managed. Tr. at 4078 (Kastner).
CHDC provides individualized risk assessments for dysphagia. CHDC uses a dysphagia disorder survey. Plaintiff’s e xpert, Ms. Crawford, had no concerns with respect to the survey. She acknowledged that the survey was created by one of Defenda nts’ experts, Justine Joan Sheppard. Tr. at 2918, 2919 (Crawfor d). Ms. Crawford herself adm itted that Dr. Sheppard is a respected expert in the area of dysphagia. Tr. at 2919 (Crawford).
Associated with the dysphagia assessment are other risk assessments used by CHDC. There are three (3) standardized assessment tools: the choking risk assessment, pneumonia risk assessment, and dysphagia disorder survey. “All three are used. They’re all administered, at least annually and more frequently in cases of incident, when there is a need, a changing in function.” Tr. at 3307, 3308 (Crawford). The Risk Assessment for Choking for Oral Eaters, the Pnuemonia Risk Assessment, and the Dysphagia Management Staging Scale are standardized instruments for the developmentally disabled. Tr. at 3310, 3311 (Sheppard); Def. Ex. 288, 289, 290. “[I]t was important that we develop tools that were standardized on the population and not use tools that have been used for people who for instance have eaten normally all their lives and then had a stroke and have dysphagia.” Tr. at 3311 (Sheppard).
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Informal swallowing and feeding assessments were conducted at CHDC within the first seven (7) days of entering CHDC, depending on level of need. “[Y]ou have got that first few days of getting people used to being there and, before you really want to subject them to any formal testing.” Tr. at 3329, 3330 (Sheppard). The screening done within thirty (30) days of admission is different than the informal assessment. “The screening tools that -- the quick tests that were used and then the formal assessment is -- the clinical dysphagia evaluation involves participation - -the interdisciplinary participation of the various specialists who will look at various components of the -- of the problems that the individual is having.” Tr. at 3330 (Sheppard). Whether an individual is referred for a barium swallow is up to the physician. “The physician is the only one that can order that.” Tr. at 6414 (Henderson). The Central Dysphagia Committee may request that the physician consider ordering a barium enema. Tr. at 6414, 6415 (Henderson). Dr. Kastner found that barium swallows were preformed in a timely fashion. Tr. at 4307 (Kastner).
With respect to the clinical dysphagia evaluation, it “includes a valuation of the contributing causes of the problem as well as a description of the problem itself. The quick tests, the dysphagia disorder survey and the dysphagia staging scale … tell you what was - - what the function is. But it doesn’t tell you what is causing any functional difficulties.” Tr. at 3331 (Sheppard). Everyone at CHDC receives a clinical dysphagia assessment annually. Tr. at 3331 (Sheppard). Upon admission, “If the quick tests indicate that the individual did have dysphagia, then there would be a clinical dysphagia evaluation.” Tr. at 3331 (Sheppard). The speech pathologist, the dietician, the physical therapist, the occupational therapist and the nurse perform the dysphagia evaluation. Tr. at 3331, 3332 (Sheppard). The evaluations were, according to Dr.
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Sheppard: “…really a best practices model. What I saw in record after record consistently was that these reports, that evaluations were responsive to events.” Tr. at 3333 (Sheppard).
[T]he clinical dysphagia evaluations where the various specialty areas would do their evaluations, submit their reports, and have these reports integrated by - - into the IPP is certainly an accepted professional practice. And the aspects of swallowing and feeding problems that needed to be noted were noted and then were put in this overall document that guided care. So that’s an accepted practice. Tr. at 3333 (Sheppard). Their collaboration with the community is a good - - is really a best practices model. So I think that we have here a –an assessment program that is in some aspects best practices and in some aspects accepted professional practice. It’s a good program. Tr. at 3333, 3334 (Sheppard). Part of CHDC’s management of dysphagia includes monitoring of dysphagia throughout CHDC. The Central Dysphagia Committee reviews dysphagia, among other matters. It meets accepted professional standards in terms of process, oversight, quality monitoring, and direct implications of treatment. Tr. at 5954, 5955 (Walsh). It is a very good quality management and risk management program at CHDC. Tr. at 5955 (Walsh). The Central Dysphagia Committee functions as a quality assurance committee. It is chaired by a registered nurse. Linda Henderson, the Quality Improvement Nurse and director of nursing, is the chair of the Central Dysphagia Committee. Tr. at 3313 , 5313, 6389 (Sheppard, Hancock, Henderson). The following other individuals comprise the Central Dysphagia Committee: a staff development nurse, the primary care physicians, four speech therapists, three clinical therapists, and the clinical supervisor, an OT, a PT, a dietician, a human rights committee chairperson, a living unit supervisor representative, the infection control nurse, an administrative representative, the dentist, the dental hygienist, and program coordinator. Tr. at 6402, 3313 (Henderson, Sheppard).
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The Central Dysphasia Committee meets monthly and makes recommendations to the interdisciplinary team, including the physician. Tr. at 5954 (Walsh).
Dr. Sheppard observed a Central Dysphagia Committee meeting. She found the “discussions were informed with very substantial documentation.” Tr. at 3314 (Sheppard). The Central Dysphagia Committee “fulfilled the functions that it’s designed for as a best practices committee was really very good.” Tr. at 3315 Sheppard. The Central Dysphagia Committee is not a reactionary committee. It is a peer review, quality assurance committee. Tr. at 3401 Sheppard).
Ms. Hancock, a PT, sat on the Central Dysphagia Committee even before it was called the Central Dysphagia Committee (previously it was called the Specialized Eating Committee.)
[T]he primary role of the physical therapist and the whole process is related to positioning and alignment. It’s just a piece or component of the overall assessment process that’s performed. Each area has different components that they provide the information to that’s all compiled together by the speech pathologist. They do a significant portion of that with input from the other areas related to their specific field of expertise, nursing provides portions of that, which all work together as a team to make sure that we are providing the most appropriate mealtime decisions for each individual person. Tr. at 5312, 5313 (Hancock). The Central Dysphagia Committee functions as a consultant and advisory body to the IDT regarding dysphagia and swallowing disorders. The Committee serves to support the team as well as make recommendations to the team and the primary care physicians. Tr. at 6389 (Henderson). The Central Dysphagia Committee reviews all airway events such as changes in risk factors, choking events, and difficult swallowing events. It reviews cases referred by any Committee member, the IRCs, the IDTs, and the medical department. The Committee also reviews cases of pneumonia and those who were on ventilators at a hospital. Tr. at 6389
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(Henderson). The committee follows a general agenda each meeting. First, follow-up and updates from the previous meeting are reviewed, especially with respect to individual cases. Then, changes in risk factors, choking events, difficult swallowing events, referral cases, pneumonias, ventilator cases are reviewed. Lastly, procedures, equipment, quality improvement or assurance matters are reviewed. Tr. at 6402, 6403 (Henderson).
CHOKING INCIDENTS AND DIFFICULT SWALLOWING EVENTS CHDC identifies residents with choking risks and takes precautions to reduce and, when
possible, eliminate choking incidents and difficult swallowing events. CHDC exercises professional judgment with respect to assessment and management of choking and difficult swallowing events. But for, perhaps, a few isolated incidents, no examples of harm due to failure to identify choking risks, or failure to protect those who have difficulty swallowing, have been proven.
A difficult swallowing event is when no intervention is required. There is no acute change in vital signs or no symptoms of airway obstruction, such as change in skin color, eye’s protruding, dizziness, change in level of consciousness, unable to speak or make a sound.
The events are strangling or severe coughing. During this event, the body’s protections are in place. If we were to talk about it in the vernacular, I would say, ‘It went down the wrong way.’ Tr. at 6390 (Henderson). The definition for choking is a partial or complete obstruction of the airway due to a foreign body, such as food or non-edibles. The onset of respiratory distress may be sudden with coughing. There may be agitation in the early stages of airway obstruction. The signs of respiratory distress included labored, ineffective breathing until the person can no longer breathe, and loss of consciousness will occur if the obstruction is not relieved.
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Tr. at 6402 (Henderson). Seventy four percent (74%) of the residents at CHDC present as a high choking risk, per
CHDC risk assessment. Tr. at 3303 (Sheppard). The CHDC choking risk assessment was statistically validated, “standardized and validated on this population.” Tr. at 3304 (Sheppard). While seventy four percent (74%) of the residents presented a choking risk in 2009, only 2.17 % of the population experienced choking events that required assistance. As Dr. Sheppard observed: “So that in spite of the high levels of risk in the population, the management was such that you have this rather small percentage actually experiencing that level of choking in that one year.” Tr. at 3304 (Sheppard).
CHDC’s choking assessment is part of the initial thirty (30) day assessment. Tr. at 3330 (Sheppard). CHDC looks at indicators such as a person’s choking history, their choking risk assessment scores, x-rays, and whether they are tube fed when considering that individual’s choking risk factor. Tr. at 6395, 6396 (Henderson). The choking risk is communicated to the program coordinator. The IDT incorporates it into their plan. The risk is listed on the diet sheet that is used in the living unit. Tr. at 6396 (Henderson). The information on choking risk is shared with the IDT, the team leader, the program coordinator, the dietary staff, the nursing staff, and the psychology department. Tr. at 6396 (Henderson).
After a choking episode, there will be a modified barium swallow done, a choking episode that requires assistance to clear. And then after a choking episode, often whether it requires assistance to clear or not, a speech pathologist will go in to observe the patient or the individual, the resident, at a meal and then report on any problem that is seen or any conditions that are apparent, any need for change in practice, in mealtime practice. Tr. at 3332, 3333 (Sheppard).
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If an individual has a choking episode, the speech language pathologist staff assesses the next meal. Alignment is considered and may be referred to the PT department for further assessment. Tr. at 5278, 5279 (Hancock). CHDC staff provides instructions to staff after reviewing choking incidences. Tr. at 5391 (Johnson). Speech staff follow-up on any medical management that may be indicated as a result of a choking incident. A special staffing may be held. Tr. at 5391, 5392 (Johnson).
The follow-up by speech could include updating the choking risk assessment if the level changes, updating the dysphagia disorder survey, modifying the diet or liquids with a referral to dietetics, changing adaptive eating equipment with referral to occupational therapy, altering positioning with referral to physical therapy, revising the eating plan, referring for a swallow study by referral to a physician, staff in-service training. It could be a recommendation for increased supervision that would be referral to the team. It could be referral to the physician for additional medical assessment or intervention or it could be a referral to the psychological examiner. Tr. at 5392 (Johnson). After a choking incident, a resident is followed up by speech pathology staff. Tr. at 5397 (Johnson). Also, after a choking incident, the choking risk level may change, which entails a new choking risk assessment. Tr. at 5397, 5398 (Johnson). When there is a choking event, first aid or a code is called if necessary. If a physician is not present, one physician will be called. The individual will go to the clinic and the physician or registered nurse will make a determination if the individual’s diet should be modified prior to the speech therapist’s evaluation. A red sticker is placed on the diet sheet and communications are documented in the log book. The sticker is not removed until the speech therapist has completed the evaluation. Tr. at 6394 (Henderson). So, when a choking event is identified, the initial response is to provide first aid. Then, dietary changes may be made. A speech therapist
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evaluates the individual and sends her findings to the physician. The therapist also engages in a core meeting with some of the Central Dysphagia Committee members. The team also conducts a special staffing to make any recommendations to the 24 hour schedule or treatment plan. The Central Dysphagia Committee also reviews the event. A swallow study may be conducted in the meantime. Sometimes the matter is referred to a gastrointestinal physician, or reflux precautions are implemented. Tr. at 6397, 6398 (Henderson). Sometimes, before the Central Dysphagia Committee even meets, diet, procedure or equipment changes are made in the interim. Tr. at 6398 (Henderson).
Normally, the speech pathologist makes her evaluation at the very next meal. It is possible, though, if the choking occurred during dinner on a Friday, that the evaluation would not take place until few days later. “However, an RN has evaluated the person, they’ve informed the doctor, and any changes that need to be made in the meantime can be made.” Tr. at 6422 (Henderson). The speech therapist always makes mealtime observations following a choking. Using a standardized form, the therapist evaluates such things as the food, the swallow, the behaviors, the size of food and how handled by the person, and the consistency of the fluid. Tr. at 6398, 6399 (Henderson).
CHDC also reviews difficult swallowing events. The speech therapist reviews a swallowing event much like that of a choking event. A core team evaluates the difficult swallow and diet changes are considered. Eating is a pleasure for CHDC residents, so CHDC tries to minimize chopped or blended diets unless absolutely necessary. Tr. at 6399 (Henderson).
Thus, CHDC adequately responds to choking incidents and then monitors individuals for any future intervention. Routine observations are performed by professional staff to document choking concerns. Such documentation includes annual dysphagia disorder survey and choking
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risk assessment; speech monitoring; food service audit reports; mealtime monitoring forms; and
program coordinator monitoring objectives. Tr. at 5392 (Johnson).
All of CHDC’s techniques to monitor and document choking are proactive.
We would have individualized diets and diet textures, proper positioning during meal times, and all instances of oral intake. The use of adaptive eating equipment to facilitate intake in a safe manner. Nutrition by tube when oral intake is unsafe or inadequate. Implementation of eating plans with procedures that are individual specific. In-service training of staff regarding eating plans, diet consistencies, choking prevention and other pertinent topics. Identification of choking and pneumonia risks to increase staff awareness, medical management of rumination, reflux, and other conditions impacting oral intake, and referral for medical tests and procedures including but not limited to swallow studies, upper GIs, and esophagrams.
Tr. at 5393 (Johnson).
Choking risk levels are also monitored over time. The team RN documents any changes
in scores from year to year, from any events, from any swallow studies, et cetera, and also seeks
recommendations from the IDT. The RN then transmits this information by means of a progress
note to the physician. Tr. at 6397 (Henderson). The choking risk is listed on the QRG. Tr. at
6396 (Henderson). There are times when documentation is not consistent though. For example,
an individual’s risk may change as the result of a choking risk assessment and it takes some time
for the quick reference guide to be changed in accordance with the modified risk assessment. Tr.
at 5396 (Johnson).
Monitoring of choking and difficult swallows also takes place via the Central Dysphagia
Committee. The Central Dysphagia Committee reviews all difficult swallowing events and all
choking events. Tr. at 6391 (Henderson). Prior to the committee meeting, Ms. Henderson
reviews the clinical record to gather information and complete a form that is used by the
Committee. The form indicates the history of choking events, history of difficult swallowing
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events, yearly choking and pneumonia assessment risk, any x-ray studies or diagnosis of any swallowing abnormalities or follow-through studies such as EGD’s or GI’s. Respiratory status and spinal issues are also reviewed. Past history of pneumonia and aspiration are reviewed. GI and oral disorders, such as GERD, gastritis, esophagitis, and constipation are reviewed. Any history of ileus, hietal hernia, gastric ulcer, H. pylori infection is reviewed. Strictures of the esophagus and gingivitis are reviewed. Precautions and interventions already in place are considered, such as reflux precautions, pneumonia vaccine, GI disorders, diet, food, texture, size, fluid consistencies. Altered nutrition, such as a g-tube is considered, or if they have drainage, NPO, potential for oral intake, whether they are fed by a pump, the speed, duration, and whether they are bolus fed. Oral hygiene and dental care are also considered. Tr. at 6391, 6392 (Henderson).
The Central Dysphagia Committee meets formally once a month. The committee also meets more often if needed. “If there is a choking event or difficult swallowing event, there will be a core team meeting.” The core team usually consists of Ms. Henderson, the speech therapist, the dietician, and the physician. If not an in person meeting, communication will occur through telephone calls. Tr. at 6392, 6393 (Henderson). If a difficult swallowing event occurs, the Central Dysphagia Committee would discuss that event at their very next meeting. Tr. at 6393 (Henderson). Individual specific cases are also discussed at the Central Dysphagia Committee meetings. Tr. at 6393 (Henderson).
In the interim between a difficult swallowing event and the review of the event at the Central Dysphagia Committee meeting, the speech therapist evaluates the individual and determines whether it is safe for the individual to eat and the type of diet they should be eating. The therapist then communicates with the dietician regarding any interventions. Also, a
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physician, dietician, or speech therapist may request a swallow study. The speech therapist’s evaluation usually occurs at the very next meal. Tr. at 6393 (Henderson). Even before the speech therapist conducts the evaluation, a registered nurse examines the individual. Tr. at 6394 (Henderson). In response to the claim that CHDC was not meeting professional standards with respect to the Central Dysphagia Committee meeting 30 days after a choking event, Dr. Sheppard responded:
So following the choking event … within two days … and often on the same day, the person has been seen by the speech pathologist and has been observed in a meal, the IDT meets - - the interdisciplinary team for that person and the residence meets and makes all the changes in program. The doctor - - the nurse has seen the person immediately. They do all the interventions that are needed and then their interventions are reviewed in this committee meeting. So that 30 days later or 2 months, whatever, later it occurs. They are acting as a quality assurance committee to review what has been done in a very timely way following the event. Tr. at 3315 (Sheppard). The fact that the Central Dysphagia Committee Minutes dated February 6, 2008, (Plaintiff’s Exhibit 1052-2) did not include any recommendations from A.R.’s choking does not mean that there was nothing done at CHDC in response to her choking and death. As Dr. Sheppard noted, “certainly, they considered it and in the considering of it came to conclusions not in the minutes.” Tr. at 3405, 3406 (Sheppard). In fact, CHDC conducted preventive measures following A.R.’s choking event and passing. There was a plan of correction, effective immediately, that all individuals that sleep in the day rooms be provided with constant supervision. The plan of correction also called for in-service training including a presentation and competency-based testing. “So it’s a complex response to the event, and a correction plan that had occurred to that event that was then reviewed … by the central dysphagia committee with no comment except that is had been reviewed.” Tr. at 3444, 3446 (Sheppard); Pl. Ex. 309.
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The Central Dysphagia Committee did not make extensive comment on the choking incident involving A.R. because the administrative review process handled the review and follow up. Tr. at 5398 (Johnson).
The Central Dysphagia Committee meets monthly. All incidents of choking are addressed. “Usually everything has already been done prior to that meeting. We just discuss it in that meeting.” Tr. at 5279, 5314 (Hancock). The Central Dysphagia Committee reviews incidents of pneumonia and choking and risk factors. The committee discusses the information and precautions that should be in place. Tr. at 5314 (Hancock).
A swallowing event at CHDC is generally anytime a resident has choked, coughed, or not been able to swallow food. Tr. at 5954 (Walsh). When a swallowing event occurs at CHDC, it is reported to the unit nurse and reported to the RN supervisor, who decides if the person needs to be seen by a physician. Tr. at 5954 (Walsh). If a swallowing event occurs at CHDC, it will be reviewed by the Central Dysphagia Committee regardless of whether it is referred to a physician. Tr. at 5954 (Walsh). If a swallowing event is referred to a physician, that physician will follow up, but a speech therapist will also go out to the residence and observe the resident’s next meal and make recommendations based on their observations and discussions with staff. Tr. at 5954 (Walsh). Swallowing events are reported to Ms. Henderson via a progress note containing the event, what was choked on/difficult to swallow, the vital signs, time of day, and interventions. Ms. Henderson is usually telephoned for purposes of notification as well. Ms. Henderson communicates with the dietician, speech therapist, as well as the physician. Tr. at 6394, 6395 (Henderson).
As additional monitoring, the Central Dysphagia Committee reviews individuals who have had a change in choking risk factors. Tr. at 6399 (Henderson). Even if someone has not
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had a choking or difficult swallowing event, he or she can be referred to the Central Dysphagia committee for review. Any member of that person’s IDT, any medical professional, or any program coordinator can make the referral. Tr. at 6400 (Henderson). Prior to 2009, the Committee did not delineate difficult swallowing events and choking events, they considered both together as choking events. Tr. at 6421 (Henderson).
As chairperson of the Central Dsyphagia Committee, Ms. Henderson verifies any changes of diet or adaptive equipment per a choking event. Tr. at 6423 (Henderson). Professionals, other than the Chair of the Central Dysphagia Committee, provide quality assurance in making sure staff is implementing any changes to the diet order sheets. Tr. at 6424, 6425 (Henderson). Direct care staff is aware of individuals who meet the high risk criteria for choking and provide higher monitoring of the protections in place. Tr. at 6429 (Henderson). Precautions would have been put in place if an individual were identified in the high risk category. “Our policy is that if somebody scores 50 percent or greater on their pneumonia risk or their choking risk, that it is our policy that we do a swallow study.” Tr. at 6429 (Henderson).
CHDC also does review trends with respect to choking and pneumonia. Tr. at 6395 (Henderson). The Central Dysphagia Committee created a database of CHDC residents who exhibit dysphagia and gastrointestinal reflux related problems. Tr. at 5954 (Walsh). While Ms. Henderson does keep a database, her best source of information is derived from her clinical records and review, and not from her database. “My database is primarily for my use.” Tr. at 6416 (Henderson). The accuracy of the database is dependent upon the accuracy of the progress notes from which she enters the data. Tr. at 6416, 6417 (Henderson). Program coordinators and the RN review information from Ms. Henderson’s database. They notify her with any errors. Tr. at 6417, 6418 (Henderson). When an individual dies or leaves the facility, they are removed
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from the database. However, Ms. Henderson maintains the hard copies of those individuals who have had choking events. “So I physically write down, I have a list, a running list of people who have had choking events since 6-07.” Tr. at 6419 (Henderson). Ms. Henderson uses the handdone list for the number of chokings. Tr. at 6420 (Henderson).
CHDC strives to prevent and reduce choking incidents. However, even with meeting every precaution, it is inevitable that with this population chokings may occur. Choking incidents have been reduced every year that the Central Dysphagia Committee has been in existence at CHDC, and from 2007 to 2009 choking incidents have been reduced over 50 percent. Tr. at 5955(Walsh).
Plaintiff’s expert provided no benchmarks or standards on choking rates in comparable settings to CHDC. Ms. Crawford did not know the number of choking incidents that occurred at ICF/MRs where she had worked. Tr. at 2923, 2924 (Crawford). She did not know what rate of choking incidents could reasonably be expected to occur in a facility such as CHDC. Tr. at 2924. Ms. Crawford did not know if the rate for choking incidents at CHDC is higher or lower than what is observed in nursing homes. Tr. at 2924 (Crawford).
Ms. Crawford referred to a facility of 300 residents, the San Antonio State Supported Living Center, that she claims had zero incidents of choking in a six-month period. Tr. at 2924 (Crawford). Even though other Plaintiff’s experts in this matter questioned CHDC’s underreporting or inadequate systems based on the low numbers for injuries and restraints, Ms. Crawford would not assume that San Antonio was underreporting. She would not assume that they have an inadequate system for identifying or reporting choking. Tr. at 2926 (Crawford). Ms. Crawford had no other numbers from San Antonio regarding the rate of aspiration pneumonia, fractures, decubiti, mortality, et cetera. Tr. at 2926, 2927(Crawford). Ms. Crawford
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did not know the number of choking incidents at San Antonio for the last two-year period. Tr. at 2926, 2927 (Crawford). Ms. Crawford did not know at San Antonio how many individuals had dysphagia, were in wheelchairs, had special diets, had epilepsy, or choking deaths within the last two years. Tr. at 2927 (Crawford).
Furthermore, in an effort to demonstrate harm from choking events at CHDC, Ms. Crawford inappropriately relied upon isolated incidents or events outside of CHDC’s control. For example:
• S.N. Regarding S.N.’s choking, Ms. Crawford was asked if it is appropriate to include an
incident that occurred outside the premises of CHDC and outside the supervision of CHDC. Ms. Crawford responded:
In my deposition, I said I do believe that as a facility we are responsible for individuals, regardless where they are at the time, and that -- I also said that it's important that the facility provide information to the family to help them understand the recommended diet textures and assistance techniques for each -for their child. Tr. at 2935 (Crawford). Ms. Crawford did not know if she included any residents other than S.N., where the choking occurred outside of CHDC, at the family’s home, for example, in her choking numbers. Tr. at 2935 (Crawford). • J.G. Ms. Crawford agreed that if J.G. has not had a choking incident since 1986, that is demonstrative that CHDC is doing some good management of his eating. Tr. at 2937, 2938 (Crawford). • J.F.
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The speech pathologist’s review of J.F. (Plaintiff’s Exhibit 1022) was a few days following the choking incident. Dr Sheppard found: “That’s still well within a best practices kind of - - or at least accepted professional practice routine.”
What you have is, you have the nursing staff looking at the individual immediately after the event or maybe even during the event, and what it says here is that the nurse found – the individual patient at that point, resident, was doing fine, with no evidence of any problem, and that he returned to his normal routine.
Tr. at 3436 (Sheppard). • J.W.R. Regarding a choking episode of J.W.R. (Plaintiff’s Exhibit 988), the nurse had checked
him immediately. Tr. at 3440 (Sheppard). • A.R. CHDC conducted preventive measures following A.R.’s choking event and passing.
There was a plan of correction, effective immediately, that all individuals that sleep in the dayrooms be provided with constant supervision. The plan of correction also called for inservice training including a presentation and competency-based testing. “So it’s a complex response to the event, and a correction plan that had occurred to that event that was then reviewed … by the central dysphagia committee with no comment except that is had been reviewed.” Tr. at 3444-3446 (Sheppard); Pl. Ex. 309. Regarding the choking of A.R. in 2008, an immediate administrative review was conducted from the team’s perspective. They also evaluated the dysphagia care she had been receiving. Protections were in place and proper assessments had been performed. It was found that this was more of a residential issue than dysphagia issue. Thus, the Central Dysphagia Committee minutes did not reflect everything that
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was reviewed or evaluated. Tr. at 6440, 6441 (Henderson). Swallowing itself was not the issue,
the lack of staff monitoring of A.R. was the issue. Tr. at 6442 (Sheppard).
Ms. Crawford commented on the number of choking incidences at CHDC as being
shocking. However, the actual numbers do not support her opinion.
There are 500 individuals and they have 3 meals a day, that’s going to be 1500. Then if you multiply those 1500 meals by 365 days a year, that will put you at 547,500. Then if we just add one medication pass for each of those individuals, that’s going to put the number at 548,000. And that doesn’t include the other medication passes or snacks or anything like that. So in 2009, there were eight choking incidences at CHDC. So when you compare those eight incidences with over 548,000 potential choking opportunities, I think the shock is there were not more. I think that speaks well that the number is so low, considering all the opportunities there would be to choke, especially if you counted each bite per meal that an individual might take.
Tr. at 5445, 5446 (Johnson).
There appears to be a spike in the number of chokings in 2007, but 2007 is when the
Committee initially started keeping choking data for every choking event and went back to
review the history of choking events. In 2008 there was a drop in the number of choking events.
In 2007, it was “the diligence and the education of our staff that we saw a spike, as you would
normally see when you start to collect data.” Tr. at 6400, 6401 (Henderson). The 2008 choking
data is accurate. Ms. Henderson herself reviewed every case during 2008 and reviewed them
with physicians. Tr. at 6401 (Henderson).
The testimony on the number of choking incidents (that is 24 in 2007, 18 in 2008, and 11
in 2009) is accurate pursuant to the information possessed by Ms. Henderson. Tr. at 6439
(Henderson). However, the numbers of chokings in 2007 to those in 2009 are not comparable.
In 2007, that would have been every event that occurred, including difficult swallowing events. In 2009, we broke it down so that we could look at the exact situation that occurred with that person. So
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in 2009, you have difficult swallowing events and then you have choking events. Tr. at 6439, 6440 (Henderson).
PNEUMONIA CHDC assesses risk of, provides preventative care for, adequately treats, and monitors pneumonia. The evidence demonstrates that CHDC exercises professional judgment in its management of pneumonia. CHDC has a pneumonia risk assessment. The pneumonia risk assessment is part of the initial thirty (30) day assessment. Tr. at 3330, 3331 (Sheppard). The nursing staff completes the pneumonia risk assessments. Tr. at 5392 (Johnson). The nurses are constantly assessing the residents, especially those at high risk, for signs and symptoms of pneumonia. Tr. at 6427, 6428 (Henderson). CHDC provides preventive care for pneumonia. Tr. at 5382 (Gardner). Preventive pneumonia care includes yearly risk assessments by a registered nurse. The assessments consider their age, any dysphagia diagnosis, how they receive their nutrition, any history of smoking, and any oral disorders. Tr. at 5382, 5383 (Gardner). Preventive care includes: reflux precautions, that is elevation of the head by 30 degrees or staying upright after meals for 30 minutes to an hour, oral care consisting of Listerine or Peridex, and the use of PPI, a protein pump inhibitor medication. Preventive care also includes a pneumonia shot and a yearly flu shot. Tr. at 5383 (Gardner). CHDC also uses mouthwash as a pneumonia precaution.
Mouthwash will decrease the number of bacteria that are in the mouth. So if the person is to reflux or if they aspirate their own saliva, then there is less bacteria in their saliva, so it decreases the chances of that person developing a pneumonia from their own saliva.
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Tr. at 6437 (Henderson). Frequency of dental visits also reduces the risk of pneumonia. “Our clients see the dentist or the dental hygienist at least every three months.” Tr. at 6437 (Henderson).
From June 1, 2008 to July 24, 2009, there were two (2) individuals transferred to the hospital for aspiration pneumonia. Tr. at 2942 (Crawford); Pl. Ex. 1037. There are other causes of pneumonia other than aspiration. Tr. at 2943 (C rawford). Ms. Crawford conceded that many of the pneumonias that she considered m ay have no relationship to aspiration. Tr. at 2943 (Crawford). Ms. Cra wford did not know the number of individuals, who she listed with pneumonias, who had no relationship to aspiration or feeding problems. Tr. at 2944 (Crawford).
Some of the risk indicators for pneumonia are dysphagia, poor oral care, receipt of nutrition from a gastrostomy tube, an excessive dry mouth or excessive secretions, a history of pneumonia over the previous five years, or an age over 40. Tr. at 5384 (Gardner). The physician makes the diagnosis of pneumonia. Tr. at 5384 (Gardner). A diagnosis of pneumonia is made by physician assessment and chest X-rays. Tr. at 5384 (Gardner). Ms. Crawford has no medical expertise that would allow her to diagnose pneumonia or to determine its cause. Once a diagnosis of pneumonia is made, CHDC takes several steps for treatment depending on the condition of the patient. The residents can be treated at the CHDC infirmary with oxygen or breathing treatments. If the condition worsens, the physician may decide that the resident should be transported to the hospital for treatment. Oral antibiotics or IV antibiotics are usually prescribed. Tr. at 5384 (Gardner). If the resident is treated at the hospital for pneumonia, upon return to CHDC, their care will be followed up. If they left from the infirmary, they will return to the infirmary for a few days. If they were admitted to the hospital from their unit or sick call, they will return and be seen by a physician. The physician will then determine the course of
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treatment and whether treatment should take place at the unit or in the infirmary. Tr. at 5385 (Gardner). At the clinic, the recovery of pneumonia is monitored. The physician will follow-up to ensure the pneumonia is clear, and there could be follow-up X-rays or laboratory work. Tr. at 5385 (Gardner). If someone is diagnosed with pneumonia, a physician is always involved in the care and treatment. Tr. at 6413 (Henderson). The teams, the RNs, the LPNs, and the physician, monitor a resident following a case of pneumonia. “It’s professional judgment by those treating staff.” Tr. at 6425 (Henderson).
As an OT, Ms. Crawford is not perm itted to order diagnostic testing as to pneumonia or to prescribe treatment or medication for pneumonia. Tr. at 2941 (Crawford). Thus, she is not the appropriate person for m aking determinations as to whethe r professional judgm ents have been exercised in these areas. Ms. Crawford was unable to identify any specific instances where staff at CHDC failed to exerci se reasonable professional judgm ent in the m anagement of a specific individual with aspiration pneum onia or pneumonia. She was unable to speak to the medical or nursing m anagement of the pneumoni as. Tr. at 2944, 2945 (Crawford). CHDC monitors pneumonia throughout the facility. The Central Dysphag ia Committee reviews pneumonia cases. Tr. at 6400, 6411 (Henderson). The Central Dysphagia Comm ittee reviews cases where the individual is placed on a ventilator. The Committee evaluates them the first day they return from the hospital after b eing placed on a ventilator. Many ti mes, CHDC refers the individual for a swallow study as well. After recuperation, anot her swallow study is perform ed. Tr. at 6400 (Henderson).
The Central Dysphagia Committee began reviewing cases of pneumonia when Linda Henderson began chairing the Committee in January of 2009. The Committee reorganized with a more clinical focus. Tr. at 6411, 6412 (Henderson). Before 2009, the Central Dysphagia
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Committee did not review individual cases of pneumonia. The infection control nurse and the Infection Control Committee reviewed the cases before 2009. They did not necessarily review each individual case, as the Dysphagia Committee now does, but they reviewed the numbers of the cases. Tr. at 6413 (Henderson). Prior to 2008, the team reviewed high-risk individuals for pneumonia. Tr. at 6414 (Henderson).
The Central Dysphagia Committee reviews the interventions in place, all the clinical information, and makes their own evaluation. The Committee considers whether there are any additional recommendations that they can make to the IDT to help prevent pneumonia. Tr. at 6412 (Henderson). The program coordinator representative documents the minutes of the Central Dysphagia Committee meetings. The minutes are taken back to the Committee for approval. Then, the chairperson signs off on them. Tr. at 6412 (Henderson). The Central Dysphagia Committee acts as an advisory committee to the IDT with respect to pneumonias. “The team - - they’re nurses, they’re doctors, they’re dieticians, they’re speech therapists, they’re direct care staff - - they evaluate and treat pneumonias.” Tr. at 6413 (Henderson).
The Central Dysphagia Committee and the Infection Control Committee interact. The infection control nurse, as well as other members, is a member of both committees. The infection control nurse maintains the data on the pneumonias and provides the committees with information on diagnoses, x-rays, or hospitalizations. Tr. at 6413, 6414 (Henderson).
The Dysphagia Committee will follow individuals one (1) to three (3) months after diagnosis of pneumonia and the Committee will assess their respiratory status. The team will continue to evaluate and treat the pneumonia. Tr. at 6414 (Henderson).
Trends of pneumonia are reviewed. Ms. Henderson does not track pneumonia in her database, but the infection control nurse does in her database. Tr. at 6427 (Henderson).
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Plaintiff’s expert provided no benchmarks and lacked sufficient knowledge for making any
sound conclusions as to CHDC and its management of pneumonia. Ms. Crawford did not know
how many cases of pneumonia occur at the ICF/MR where she worked. Tr. at 2941 (Crawford).
She did not know the rate of pneumonia that could be reasonably expected to occur at a facility
similar to CHDC or if the rate of pneumonia at CHDC is higher or lower than what is observed
in nursing homes. Tr. at 2941 (Crawford).
Although Crawford claimed that one facility in Texas has no aspiration pneumonia for a
short period of six (6) months, Dr. Kastner explained:
The exhibit which she was asked to look at, which was the list of hospitalizations of people from CHDC, identified only one instance of aspiration pneumonia during the 12-month period and a second possible instance. I personally don't think that there is a compelling body of evidence to suggest that the rates of aspiration pneumonia are any different than would be reasonably expected, based upon reasonable practice. That -the fact that there was zero reported at one facility over a period of six months and the facility is half the size of Conway -- and Conway's, you know, 500 people in a 12-month period and had one. I don't find that to be significantly different. The comparable time frame with a smaller facility in Texas would have been a two-year period, and it would have been valuable to find out whether there had been other hospitalizations due to aspiration pneumonia resulting from the San Antonio school. But, you know, the fact that one happened over that period of time at Conway doesn't concern me at all.
Tr. at 4079 (Kastner).
As to Plaintiff’s experts not dist inguishing between aspiration pneum onia
and other pneumonia, Dr. Kastner stated:
If you identified pneumonia as the outcome, it's incorrect because there are multiple other contributing factors to the development of pneumonia. It would be unreasonable to say that people develop pneumonia and relate that to only a couple of the factors that lead to an increased rate of pneumonia. You have to be specific, tie the outcome to the process, tie aspiration
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pneumonia to dysphagia and gastroesophageal reflux -- is the only appropriate links. When you do that, you don't see an elevated risk of aspiration pneumonia at the Conway Human Development Center relative to comparable ICFs, those identified by Dr. Mikelson, or the data that Ms. Crawford produced from her experience in Texas. It's the same or at least it's within the realm of the same. Tr. at 4080 (Kastner). Aspiration pneumonia was not increased at CHDC compared to other benchmarks. Tr. at 4078 (Kastner).
MEALTIME AND MEAL PLANS CHDC provides individual m eal plans to its residents and m anages mealtime in a safe, pleasant, and appropriate envir onment. Food consistencies are m odified per individual need. Residents’ eating is m onitored. Staf f is m onitored and tr ained on their f eeding and mealtime support. T hus, CHDC exercises professional judgment in its de livery of m eal services. The various food consistencies and delivery of th ose consistencies m eet accepted professional standards. Dr. Sheppard conducted a “rather extensive review of the dietary department … because they play such a central role in nutritional management at CHDC. And so [she] looked carefully at their policy and procedure.” Tr. at 3315 (Sheppard). The Dietary Department at CHDC meets professional standard with respect to their involvement in dysphagia and nutritional management. Dr. Sheppard found: “[T]here is some accepted professional practice and some very much best practice in this - - in what they’re doing.” Tr. at 3321 (Sheppard). Plaintiff’s own expert, Ms. Crawford, found the diet plans and the special meal time safety plans themselves to be “minimally acceptable”. Tr. at 2771 (Crawford). All of the
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residents had individualized mealtime plans. Tr. at 3303, 5394 (Sheppard, Johnson). The diet supplement sheets and the mealtime plans guided the residential staff in mealtime management. Tr. at 3334 (Sheppard). The dietician generated the diet supplements and the speech pathologist generated the mealtime plans. Tr. at 3334 (Sheppard). Preference foods were available and offered to residents. Tr. at 3335 (Sheppard). Regarding the mealtime plans, Dr. Sheppard observed:
[T]he plans I looked at were up to date. They were appropriate for the needs of the individuals and some sensible decisions had been made about what the individuals needed. There was one particular instance where the plan was not available. It was being used elsewhere, but otherwise the plan books were all available within the dining room. And I looked at the diet sheets to see that they were appropriate and up to date. Tr. at 3343 (Sheppard). “Everything in these individualized plans was consistent with accepted professional practice.” Tr. at 3343 (Sheppard). The diet descriptions were correct. The fact that there were errors in service, that didn’t do any particular harm. In other words, the tolerance that the individual had for that error was good, was okay. That - - meets minimally acceptable standards. Tr. at 3348 (Sheppard). The pediatric and the adult program occurred within the context of the activity. Tr. at 3338 (Sheppard). Dr. Sheppard found that such incidental training was optimal practice. Tr. at 3338, 3339 (Sheppard). Regarding the pediatric residential dining program, there was a lunchtime training program in the pediatric houses. It was a skill driven program. The program was for the purpose of developing eating behaviors, that is, “behave in an eating situation and then eating skills, self feeding skills, use of utensils and chewing skills, cup drinking skills … and be able to function in a less restrictive environment.” Tr. at 3337 (Sheppard). The pediatric residential dining program met accepted professional practice as stated by Dr. Sheppard. Tr. at
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3338 (Sheppard). The pediatric residential dining program was interdisciplinary and was integrated with residential care. Tr. at 3338 (Sheppard).
Enteral nutrition, nutrition and/or hydration by non-oral means, is sometimes required at all ICF/MRs. Tr. at 2946 (Crawford). Ms. Crawford did not know the number of individuals on enteral nutrition at the ICF/MR where she worked. Tr. at 2946, 2947 (Crawford). Ms. Crawford did not know the rate of enteral nutrition that could reasonably be expected to occur at a facility such as CHDC or how the rate compares to that at nursing homes. Tr. at 2947 (Crawford).
Mealtime management procedures met accepted professional standards. Practices “in some ways best practices, in some ways acceptable professional practice, but it’s up there.” Tr. at 3335 (Sheppard). There were a variety of eating environments, such as the cafeteria, a canteen, and the houses. Tr. at 3336 (Sheppard). The staggered serving schedule, where individuals did not have to wait that long for their food, was “quite good” according to Dr. Sheppard. Tr. at 3344 (Sheppard). Where groups were brought into the kitchen, the individuals had to wait longer to be served. Dr. Sheppard stated:
And when I saw that there was an overly long wait, I would rate that as minimally acceptable. And when I saw that the waits were within ten minutes or so, I thought that was an accepted professional practice. That’s okay. Tr. at 3344 (Sheppard). Service schedules were varied from house to house. Dr. Sheppard found four observations best practices and six observations to be accepted professional practice. Tr. at 3345 (Sheppard). Mealtime recommendations on procedures and techniques “were all appropriate recommendations and they’re certainly accepted professional standards.” Tr. at 3349 (Sheppard). With respect to implementation of recommendations, Dr. Sheppard found four of
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her ten observations were best practices, three were acceptable and three were minimally acceptable. Tr. at 3350 (Sheppard).
With respect to staff supervision of meals, “a couple of houses met a best practice standard in how they supervised and assisted the residents and two met an accepted standard and four were minimally acceptable.” Tr. at 3350 (Sheppard). Dr. Sheppard found the dining rooms to be pleasant, with good acoustics, with ample space, with good clusters of people, and space to eat alone if preferred. It was individualized. To that respect, it was a best practices model. Tr. at 3350, 3351 (Sheppard).
Published literature refers to liquid consistencies as nectar, honey, but not milk shake. Tr. at 2940 (Crawford). There are five diet consistencies at CHDC: blended consistency which is puree; chopped consistency which is essentially ground; diced consistency which is cut up in small bite-sized pieces; soft diet, which is chewable; and regular diet which is fundamentally restricted. Tr. at 3317 (Sheppard). With developmental disabilities, varied consistencies of food are necessary because some do not have the developmental skills or the tolerance, or swallowing ability. Specialized diets are needed due to physiological or psychological or developmental issues. Tr. at 3317, 3318 (Sheppard). There is a continuum of modified food diets. Tr. at 3318 (Sheppard). Liquid consistencies also vary. Some individuals need thickening in the liquid to be able to control it upon swallow. Thickenings include honey thick or honey-like consistency, or spoon thickened or pudding-thick liquid. Pudding-thick can range in thickness, but is delivered by a spoon rather than a cup. Tr. at 3318, 3319 (Sheppard). Dr. Sheppard found that the various liquid and food consistencies at CHDC meet the residents’ needs and is “best practices.” Tr. at 3319 (Dr. Sheppard). Liquid thickening “is a problematic issue wherever it’s done.” At CHDC, it met minimally accepted standards. Tr. at 3348, 3349 (Sheppard).
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Regarding Plaintiff’s Expert Carly Crawford’s testimony regarding K.S. and the thickening of his liquid, Ms. Holbrook explained:
K.S. prefers his liquids thickened. They do not have to be thickened for any kind of aspiration purposes. He just prefers that, and that’s his preference. Tr. at 5320 (Holbrook). Consequently, if any liquids were not thickened for K.S., it was not a safety issue. Individual dietary information was included in three places: in each residence, in the mealtime guidelines, and in the residential guidelines. Tr. at 3303 (Sheppard). When a physician makes an order for a diet change, the diet change will be made on the same day it is received. On weekends the change is made by the nurse and during the week by the dietician. Tr. at 3320, 3321 (Sheppard). The quick reference guides (QRG’s) and the meal plans were consistent. There was a system in place. When changes were made to the meal plans, there may be a lag in making the change to the QRG. Tr. at 3376 (Sheppard). Dr. Sheppard reviewed approximately 85 meal plans and approximately 1/3 of those QRG’s. The ones she reviewed were congruent in that the QRG’s contained the most recent changes. Tr. at 3378 (Sheppard). Staff is alerted to a resident’s choking risk by the choking risk assessment. Such assessment results are sent to the individual’s residence, the program coordinator, the nurse and other team members. The results are noted in the IPP, the 24 hour schedule, the quick reference guide, on the diet sheets, and on the eating plans. Tr. at 5395 (Johnson). Seating at mealtime was “quite appropriate” according to Dr. Sheppard. There was a “full variety of chairs available to meet the needs of individuals - - highly individualized seating and quite appropriate. Really best practices model.” Tr. at 3346 (Sheppard). The PT Department’s responsibility with respect to mealtime seating is training, that is Phases I and II,
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spot checks, and in-services. PT staff is present in the residences, providing input on proper alignment on a regular basis. Tr. at 5277 (Hancock). “So in-service and education and alignment is a very big part of our role, and it is done on a continuous basis.” Tr. at 5277 (Hancock). Speech language pathologist staff also evaluates mealtime seating through their training and experience on positioning and alignment. Tr. at 5278 (Hancock).
Although Ms. Crawford alleged that monitoring of physical and nutritional supports was general and did not address the efficiency of interventions, Dr. Kastner found that there is “abundant evidence in the record of active monitoring of the effectiveness of interventions. Tr. at 4289 (Kastner).
The food audit contains information such as food temperatures, safety, sanitation, correct diet, correct adaptive equipment, and correct consistency of liquids. Tr. at 5318 (Holbrook). Food audit process entails viewing of a variety of mealtimes by the Dietary Department, or someone designated by the team. Information is checked, is audited, at various mealtimes on a routine basis. Tr. at 5318 (Holbrook). The food audits have been effective. Corrections are made at the time of the audit and then Quality Assurance follows up with a plan of correction and formal training. Tr. at 5318, 5319 (Holbrook). If the food auditor observes an increase in the number of modified diets being served incorrectly, Quality Assurance, the team leader, and the residential supervisor are notified. Tr. at 5319 (Holbrook). Quality Assurance tracks any corrections per the food audits through its plan of correction process. Tr. at 5319 (Holbrook). If an individual is cited during a food audit for failing to correctly modify a diet, a follow-up audit is conducted. Tr. at 5319 (Holbrook). Food service audits include the manner in which food is served and the positioning of staff feeding an individual. Tr. at 5393 (Johnson).
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CHDC monitors the effectiveness of strategies outlined in an eating plan by using functional outcomes and trending of the previous five years. (Functional outcomes include weights, hydration status, choking incidents, and pneumonia incidences.) Tr. at 5319, 5320 (Holbrook). The mealtime monitoring form includes checking for signs of silent aspiration, such as coughing, watery eyes, use of adaptive equipment, and meal refusals. Tr. at 5394 (Johnson). Monitoring allows CHDC to follow an individual by their functional outcomes. Tr. at 5394 (Johnson). Staff is monitored on their feeding techniques when the speech pathologist is in the unit or during a food audit. They are also monitored by the dysphagia disorders surveys and the mealtime monitoring forms. Tr. at 5395 (Johnson). The dietician monitored quarterly for conduct of the dining room, issues related to food preparation and cleanliness, and food consistencies. The program coordinator monitored the service objectives. Tr. at 3339, 3340 (Sheppard). The monitoring met accepted professional practice. “It was interdisciplinary, and that is certainly good.” Tr. at 3340 (Sheppard). The dietician, speech pathologist, and the residential program managers monitored the direct care staff with respect to implementation of meal plans. Dr. Sheppard reviewed the evaluations that were done by the speech pathologists following choking incidents. She reviewed monitoring lists and reports from the speech pathologists. Tr. at 3374, 3375 (Sheppard).
Float staff receive information on mealtime via in-service training that has been done by the supervisors. It is the supervisors’ responsibility to ensure that any staff assisting with an individual has been trained with respect to that individual. Tr. at 5397 (Johnson).
Speech pathologists are present in the units on a routine basis. They see individuals on average 15 times a year. Tr. at 5395 (Johnson). “The dietician, the dietary department or a speech pathologist working with the dietary department observes every resident monthly.” Tr. at
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3339 (Sheppard). Some with higher risk or with “less stable patterns” were monitored twice a month. Tr. at 3339 (Sheppard). Monitoring was also conducted upon request by staff. Tr. at 3339 (Sheppard). Interim monitoring occurred after episodes of choking or pneumonia. Tr. at 3340 (Sheppard).
ADAPTIVE EQUIPMENT CHDC’s inventory and use of adaptive equipment meets accepted professional standards.
Plaintiff has raised no specific issues with respect to the adaptive equipment which CHDC provides to its residents. Regarding adaptive equipment, Ms. Crawford found that “there was really not an overwhelming concern there at all.” Tr. at 2840 (Crawford).
[T]hey maintain an inventory of adaptive eating equipment, and they participate with other departments in comprehensive team assessments or in their version of comprehensive team assessment, which is to submit annual reports that refer to nutritional management as a part of the report. Tr. at 3323 (Sheppard). “Departments conduct an annual reevaluation of individuals and perform and update checks of individuals using adaptive chairs 12 to 15 times annually.” Tr. at 3323 (Sheppard). Dr Sheppard found that the adaptive equipment was “really quite good. It was certainly accepted professional practice. It was very good.” Tr. at 3328 (Sheppard). With exception of 2 or 3 isolated instances out of 85, the equipment was provided as prescribed. Tr. at 3347 (Sheppard). The feeding equipment at CHDC includes conventional and specialized equipment. The feeding equipment demonstrated “best practice.” Tr. at 3347 (Sheppard).
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COMMUNICATION AND SPEECH THERAPY CHDC provides a variety of communication devices and supports and provides speech
therapy and services. As described below, CHDC meets accepted professional standards in delivery of communication and speech therapy services. CHDC utilizes various communication boards, from very simple boards to very sophisticated boards. Tr. at 3532 (Jinks). The communication systems at CHDC enabled individuals to be functional, enabling them to interact with the staff providing services to them. Tr. at 3533 (Jinks).
The words included on a communication board are derived from a standard list of words and also from staff surveys and conversations with parents/guardians regarding an individual. Tr. at 5397 (Johnson). Approximately 60 generic communication boards are available at various CHDC locations. Health or medical related boards are located in each of the nurse’s stations, residences, and at 25 other locations across campus. Tr. at 5388, 5389 (Johnson).
CHDC does not use the picture exchange communication system (PECS). CHDC believes their therapy is “more person centered than product driven.” They believe their therapy is appropriate. Tr. at 5390 (Johnson). Staff were familiar with the picture exchange communication system (PEC system), but had not implemented it. Mr. Jinks was unaware of any accrediting body which would accredit the PEC system. The absence of the PEC system is not reflective of a departure from any professional standards. “It’s just one approach that could be considered.” Tr. at 3534, 3535 (Jinks). There was no training available in the State of Arkansas on the PEC system. Tr. at 3535 (Jinks). Mr. Jinks recommended the increased use of speech output systems. Such would enhance the program but is not necessary to meet accepted professional standards. Tr. at 3536, 3537 (Jinks).
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Residents begin training on communication boards in therapy. Once they are able to use the board in therapy, it is incorporated into their home and school, and they may be further evaluated for the use of speech output system. Such training meets acceptable professional standards as determined by Mr. Jinks. Tr. at 3534 (Jinks). Residents begin training on communication boards in therapy. Once they are able to use the board in therapy, it is incorporated into their home and school and they may be further evaluated for the use of speech output system. Such training meets acceptable professional standards. Tr. at 3534 (Jinks).
With respect to staff training and supervision, speech language pathologists refer to Ms. Johnson if they need guidance or have any clinical questions. Tr. at 5444 (Johnson). Research shows that there is little or no empirical data on the clinical outcome of clinical supervision. Furthermore, those with many years of experience are in the self-evaluation stage and require little or no supervision. Tr. at 5444 (Johnson).
Twenty-one (21) school age residents are non-verbal. Seven (7) school age residents have augmentative communication systems which they are being trained on. Six (6) of those individuals take the devices across campus with them. Tr. at 5389 (Johnson). Verbal school age residents do not require alternative communication devices, as they are already able to communicate. Tr. at 5389 (Johnson).
When a need is made known or when a new resident comes into the facility, communication evaluations are completed and the broad spectrum of communication abilities is considered. Then a more in-depth evaluation would be completed for those that have need for further use of augmentative communication. Tr. at 3538, 3539 (Jinks). School-age residents are evaluated within 30 days of admission and then re-evaluated every three (3) years. Also, they can be evaluated at any time at the request of the interdisciplinary team. Tr. at 5388
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(Johnson). All of CHDC’s school age population has received a formal augmentative or alternative communication assessment. Tr. at 5388 (Johnson). .
Mr. Jinks found that CHDC provides effective communication services for individuals with severe physical and motor impairments. Tr. at 3539, 3540 (Jinks). CHDC provides a wide range of communication services and systems. CHDC covers a broad range of applications of communication technology. Tr. at 3540 (Jinks). The speech programs at CHDC are clinician designed specifically for the individual. Tr. at 5390 (Johnson).
Mr. Jinks observed four residents while on site: A.J., S.B., K.F., and C.M. Tr. at 3532 (Jinks). Mr. Jinks observed a speech language pathology therapy session while on site. Tr. at 3531, 3532 (Jinks). Mr. Jinks observed speech language pathologists interacting with teachers in special education settings at CHDC. Tr. at 3546 (Jinks). Mr. Jinks noted that the speech language pathology evaluation, the recommendations, and the goals were appropriate to the individuals. Tr. at 3535 (Jinks).
Mr. Jinks found that it was an appropriate conclusion for CHDC speech pathologists, after considering and trying the consultative model, to decide to provide direct therapy. “[I]t’s up to each individual facility or institution to make that type of decision.” The absence of a consultative model does not fall below any professional standard. Tr. at 3533, 3534 (Jinks). All residents, regardless of their age, have access to speech language therapy services.” Tr. at 5388 (Johnson). Twenty nine (of fifty) of the school age children at CHDC receive direct speech therapy. Tr. at 5388 (Johnson). In public schools, not all of the special education students are enrolled in speech therapy. Tr. at 5388 (Johnson). CHDC uses traditional speech therapy. Such therapy is used all across the United States and in other countries. Tr. at 5390, 5391 (Johnson). The students on Ms. Johnson’s speech caseload are meeting their objectives. If students do not
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meet their objectives, a plan of action is developed to assist them in meeting those objectives. Tr. at 5391 (Johnson). Mr. Jinks also determined that communication issues are being addressed through behavioral programs. Tr. at 3556, 3557, 3561 (Jinks). Mr. Jinks found that the reports specific to communication systems in the medical records met acceptable standards. Tr. at 3533 (Jinks). The speech language pathology sections of the medical charts include an evaluation, and annual review and progress notes. Tr. at 3535, 3536 (Jinks).
OCCUPATIONAL THERAPY (OT) AND PHYSICAL THERAPY (PT) CHDC provides OT and PT services and therapy. Physical management at CHDC
includes assessment and monitoring. Positioning and repositioning plans are individualized and have protected individuals from harm. Staff is trained on OT and PT techniques. The Constitution imposes a duty, pursuant to the exercise of professional judgment, to provide services “which maintain the residents’ maximum ability to move, but not a duty to achieve some optimal level of performance.” U.S. v. Commonwealth of Pennsylvania, 902 F. Supp. 565, 617 (W.D. PA 1995), aff’d U.S. v. Ridge, 96 F.3d 1436 (3d Cir.1996) in accord with Youngberg v. Romeo, 457 U.S. 307, 329 (1982).
[A]n infringement of a mentally retarded resident’s liberty interests may occur if a loss in movement results from the Center’s failure to provide necessary physical therapy training and/or services, but not every instance where there is a loss of movement indicates that a constitutional violation has occurred … absent proof that the failure to provide training results in the loss of a recognized liberty interest (e.g. minimally adequate or reasonable training to ensure safety and freedom from undue restraint, as recognized in Youngberg), does not implicate constitutional Due Process concerns.
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U.S. v. Commonwealth of Pennsylvania, 902 F. Supp. 565, 617, 618 (W.D. PA 1995), aff’d U.S. v. Ridge, 96 F.3d 1436 (3d 1996). The Plaintiff has provided no evidence to support any claim of any harm resulting from CHDC’s physical management programs. The record reflects no evidence of loss of movement, loss of any basic care skills, or medical harm such as untreated or preventable decubiti. To the contrary, Defendants’ expert, Ms. Hackett found the adult and school age PT programs to meet accepted professional standards. The fragility of CHDC residents’ skeletal systems as well as the best possible position for their skeletal ability must be considered. As described below, CHDC is exercising professional judgment and is meeting or exceeding constitutional standards with respect to physical management.
PHYSICAL THERAPY SERVICES Ms. Hackett found that CHDC residents are receiving appropriate physical therapy
supports and services. Tr. at 5290 (Hancock). The PT services at CHDC enable the residents to become more mobile and comfortable. Tr. at 5290 (Hancock). Part management of spasticity is access to a physician in Little Rock and in Conway. Tr. at 3456, 3457 (Schmeler). The physical therapy department at CHDC primarily looks at range of motion, posture and mobility. Tr. at 3458, 3459 (Schmeler). The physical therapy department at CHDC conducts individual assessments upon admission and then subsequently throughout residency. Tr. at 5251 (Hancock). Physical therapy treatment is based on the assessments and the individual treatment needs. Tr. at 5251 (Hancock).
CHDC addresses acute medical needs; provides wheelchair modifications and power wheelchair training; wound care; positioning programs; and holds monthly orthotic clinics. The physical therapy department also provides direct therapy services. Tr. at 5251 (Hancock).
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Physical therapy treatment and direction are determined through the physical therapy assessments. Assessments include the consideration of orthopedic involvement, muscle tone issues, contractures, and measurements. Tr. at 5255 (Hancock).
Direct PT intervention includes PT services that assist an individual in achieving a goal and PT staff actively work with the individual. Indirect PT services pertain to pieces of equipment used by individuals. Tr. at 5257, 5258 (Hancock). The physical therapist is ultimately responsible for each individual’s indirect PT services. Tr. at 5261 (Hancock).
New admissions require more detailed assessments including chart review. Assessments for new admissions that are school-aged require standardized testing. Tr. at 5255, 5256 (Hancock). CHDC utilizes standardized tests for school-age individuals per the IDEA rules. For the general public, such testing guides the reimbursement process. CHDC does not bill in that manner, but uses the testing as guidance for service goals related to mobility or balance coordination. CHDC also uses other forms of standardized tests. Tr. at 5259 (Hancock).
Assessments for new admissions provide a baseline of functional abilities. Also, devices are reviewed for continued use at CHDC. Tr. at 5256 (Hancock).
Those receiving direct intervention PT services receive annual assessments. Tr. at 5257 (Hancock). Those with one piece of adaptive equipment, such as a wheelchair or AFO or gait belt, their PT services would be assessed on an annual basis. Tr. at 5257 (Hancock). Those not receiving direct PT service or without adaptive equipment, are assessed for PT services every five years. Tr. at 5257 (Hancock). There are minimum PT services outlined for the formal assessment process. PT staff go beyond those services depending on the particular issues through other processes. Tr. at 5258 (Hancock). The positioning plans are contained in the positioning book maintained at each living unit. Three types of positioning are delineated in the
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book: time out of the wheelchair; alternate positioning; and individual positioning programs. The book contains guidelines and pictures. Tr. at 5263, 5264 (Hancock).
PHYSICAL MANAGEMENT, POSITIONING, POSITIONING PLANS The occupational therapy department at CHDC primarily looks at upper extremity,
splinting, helmets, activities of daily living, bathing, dressing, feeding, and adaptive utensils. Tr. at 3459 (Schmeler). Ms. Crawford did not offer any testimony as to assistive equipment technology supports despite her reference to this area in her report. Dr. Kastner observed:
But I don't believe she testified at all about Section 2 of her report and the issue of assistive technology supports, which I found to be quite striking, because this was the area that relates to the scope of practice of occupational therapists. I don't understand it really. It was probably the only area to which she could have reasonably offered an opinion about the standard of care. But I don't believe that she did offer that during her direct testimony. Tr. at 4293 (Kastner). Monitoring of treatment plans are performed by OT and PT on a weekly basis or a monthly basis. They make observations and review documentation. There is a quarterly review and then an annual review. Tr. at 3479 (Schmeler). Plaintiff’s expert, Ms. Crawford, criticized the positioning of several individuals. However, her criticisms are unfounded by the evidence or at best are isolated incidents. Furthermore, no evidence of harm has been identified by the Plaintiff or its experts related to any alleged improper positioning. • R.M.K. R.M.K. has custom molded wheelchair seating. He has a day bed for alternative positioning. For OT he receives indirect services, uses soft hand splints, and has a hand
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washing program. Dr. Schmeler found that his equipment was adequate, needing no adjustments. Tr. at 3461, 3462 (Schmeler). • G.H. G.H.’s wheelchair was modified to accommodate his preference for leaning. He had been accessed for a power wheelchair. Dr. Schmeler noted that the wheelchair was adequate, meeting his needs. Tr. at 3462, 3463 (Schmeler). • L.E. Dr. Schmeler noted that L.E.’s poor posture and poor seating alignment is not the fault of CHDC. Such deformity most likely evolved over 15 or 20 years or so due to lack of intervention living at home before he came to CHDC. Either intervention was not available or the knowledge was not available at the time. Tr. at 3477, 3478 (Schmeler). L.E. has very severe rotational kyphoscoliosis, “he’s essentially twisted 180 degrees … some of the most challenging of situations to deal with.” He has a customized seating system. While placed in bed at night, he has no alternative positioning program. Such is acceptable given his posture. He receives indirect OT services and is monitored for skin hygiene. Dr. Schmeler found that his physical management and interventions were appropriate. Tr. at 3464 3466 (Schmeler). L.E. was admitted to CHDC in November of 1980. L.E. is a “very rare example of someone that has a severe condition that’s referred to as opisthotonos.” Tr. at 5274 (Hancock). L.E. also has a “rotational component in his condition that - - long-term effects of that condition result in scoliosis, pelvic obliquity, hip dislocations, sometimes pressure problems, even mandibular malalignment.” Tr. at 5275 (Hancock). At the time of admission to CHDC, the orthopedic stated that he would be bedridden. “[A]t the time that he arrived at the facility, he
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was already in that posture.” Tr. at 5275 (Hancock). L.E. was seen three years following his admission to CHDC by Dr. Richard McCarthy, a renowned orthopedics specialist in the community. Dr. McCarthy found that there were no treatment options available for L.E.’s condition. Tr. at 5276 (Hancock). Ms. Hackett determined that CHDC has provided L.E. with an appropriate seating system. It is like a cart that allows him to be mobile.
He has no skin breakdown. He is happy. He’s able to go to class. And he has what I feel like for him a very rounded - - well life. Tr. at 5276, 5277 (Hancock). • K.P. K.P. has a history of fractures, severe osteoporosis for which “quite a few interventions” were in place. For OT, she was monitored for a bilateral hand hygiene program. She had a left positioning splint for her hand. Dr. Schmeler stated: “So my overall conclusion here is, there was nothing that stood out as being any kind of departure from accepted standards of practice. They are using precautions to avoid fractures. Her wheelchair appeared to fit her well, and she seemed to be on her appropriate splinting program for her left hand.” Tr. at 3466, 3467 (Schmeler). • K.D.B., C.C., G.H., M.J., K.S. Dr. Schmeler also reviewed the physical management of K.D.B., C.C., G.H., S.B., M.J., and K.S. “Overall, the type of population that I looked at tended to be people with pretty severe physical and cognitive disabilities that require some pretty significant interventions related to seating and mobility and splinting and being able to manage their activities of daily living, so transfers, dressing, toileting, eating. There really wasn’t anything that stood out as being a significant departure.” Tr. at 3468, 3469 (Schmeler). • N.K.
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N.K. is positioned in posterior tilt. Posterior tilt is a position “like if you were to slide
forward in your chair and sit on just the back portion of your spine and pelvis, this person
is fixed in that position.” Tr. at 5282 (Hancock).
He is also fixed with an abduction somewhat. He has a multitude of orthopedic concerns that have been addressed over time. He has degenerative joint disease of both hips and he has had right hip sublation, which subsequently required surgery. So he has a variety of other health, just medical needs. When he entered into the center, his orthopedic considerations were well established at the time of his entrance. He came from a home setting, and his orthopedic structure was set.
Tr. at 5282 (Hancock). Ms. Hancock noted that N.K. has GERD which can be affected by his
posterior tilt, but he is in the most upright position he can be in. Tr. at 5283 (Hancock).
• K.D.B., L.H., K.M., M.M., K.P., G.Y., J.D.
Plaintiff’s expert Carly Crawford mentioned K.D.B., L.H., K.M., M.M., K.P., G.Y., and
J.D. in her expert report. The first six of those reside in 2 Willow, the unit which houses the
most fragile women at CHDC. Their positioning programs do state that these individuals should
not be out of their wheelchairs for extended periods of time. It is an accurate statement.
However, it is a template statement used throughout the Center. It is difficult to seat these
women in their chairs. These women “are the most health-fragile individuals that we have at the
center, and also severely deformed individuals that have such orthopedic concerns and muscle
tone concerns that it is difficult to seat them in a chair.”
… [T]hey have less of a tolerance to being upright and in that chair than other individuals. You would only have to look at their x-rays to see how deformed and the severity of the deformity that we’re talking about. So you would find that if they were in their chair and then they appeared to be uncomfortable, that they would be placed in alternate positioning, and that may not be in their wheelchair.
Tr. at 5284-5286 (Hancock).
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Ms. Hancock has never seen any resident in Willow in any type of inappropriate seating. Tr. at 5309 (Hancock). For the individuals, whose plans stated they should spend most of their time in their wheelchairs, it was not inappropriate for them to spend time outside of their wheelchairs. Tr. at 5309 (Hancock). “[I]f you saw the orthopedic consultations on these individuals, this wouldn’t even be a question.” These individuals have significant deformities. They are out of their wheelchairs for quality of life and comfort. “The fact that we could provide seating for some of these individuals is just - - is amazing. It’s amazing they don’t have skin breakdown problems, amazing they can even be upright.” Tr. at 5309, 5310 (Hancock). They have incurred no harm from being outside their wheelchairs. Tr. at 5310, 5311 (Hancock).
A huddle cuddle can be categorized as being similar to a waterbed frame. Tr. at 2939 (Crawford).
• K.P. K.P. was on hospice care. She spent a significant amount of time out of her wheelchair due to comfort reasons. Tr. at 5287 (Hancock). Optimal alignment is in a wheelchair. Tr. at 5291. Individuals, such as those residing at
Willow, have physical conditions that may necessitate them to be out of their wheelchairs more frequently. Tr. at 5292 (Hancock). While Ms. Hancock agreed that the statement on top of their positioning programs stating that their wheelchairs are the optimal position did not apply to them, she explained that the reason the statement was there was because it was part of a form template used throughout the facility. Tr. at 5292, 5293 (Hancock).
While wanting to see more detail and better pictures, Plaintiff’s expert, Ms. Crawford, found no problem with the positioning plans themselves. Tr. at 2896 (Crawford). “I think they minimally meet the standard.” Tr. at 2896 (Crawford). Positioning programs are available in the
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areas where the individuals live and eat in a notebook. Tr. at 2939 (Crawford). The positioning programs at CHDC were adequate. Tr. at 4828 (Hackett). Individualized positioning plans were provided for many individuals. The importance of using wheelchairs was stressed; and individuals were optimally aligned a lot of the time. Tr. at 4828 (Hackett). Regarding the individuals she observed, Ms. Hackett found the positioning to be “appropriate, generally adequate.” Tr. at 4829 (Hackett). Positioning programs were out and available when the individuals were eating. “I thought that was also significant. It’s one thing to have a program that’s in a book, but it’s another thing for it to be being used functionally.” Tr. at 4829 (Hackett).
Individuals may move themselves out of optimal alignment while in their wheelchairs or while seated when eating. Tr. at 2948 (Crawford). Ms. Crawford did not formally assess any individuals as to verify whether or not they were properly aligned or whether or not they had sufficient support. Tr. at 2948 (Crawford). The determination of proper alignment is a matter of professional judgment based on assessment of the individual. Tr. at 2951, 2952 (Crawford). Ms. Crawford was asked whether it was possible, for example with those who have deformities or contractures, that those individuals cannot be placed in as perfect a position that would be suggested for them. She replied that she would not suggest a perfect position for them. Tr. at 2954 (Crawford). Ms. Crawford could not specifically say for any of the individuals she noted as having improper positioning that they were harmed as a result of the positioning. Tr. at 2957 (Crawford).
“Positioning means postural alignment and the supports that maintain that postural alignment.” It is “extremely important” at meals. Tr. at 3379 (Sheppard). When asked whether
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she checked the congruency between the plan and the individual’s alignment during her
observations, Dr. Sheppard replied:
Oh, of course I did. When I would be looking - - if there was anything in the mealtime plan that specifically addressed how they should be positioned while eating, I would have been looking at that.

Tr. at 3380 (Sheppard). She continued:

There are standards of positioning that are adhered to in eating. Head alignment sometimes, hip alignments, postural alignments, and that’s an accepted standard for eating. And the mealtime plans are for the individualized items on top of those general standards. And so what I addressed in the other items were the specialized needs that were articulated in the individual plans, but I didn’t have it here. It doesn’t mean that they didn’t - - I don’t say they didn’t meet, adhere to whatever was in the mealtime plans, but of those 85 mealtime plans I looked at, there must have been very few that had anything to do with seating, is my guess as to the reason for me not articulating it here. What I thought was a more general and valid way of doing it was to say that they adhered to the standards.

Tr. at 3382, 3383 (Sheppard).

With respect to Plaintiff’s expert’s statements on proximal stability as it relates to

mobility and function, Dr. Schmeler explained:

That’s pretty much a theoretical textbook description of seating.

*

* *

Seating is a much more complicated activity than most people

really understand it. If you look at our own seated postures, we

move constantly. We change our positions throughout the day,

throughout the hour, depending on what our needs are … But then

there’s comfort. Sitting upright is not comfortable … So stability

and balance sometimes gets trumped you want to be comfortable

… So it’s hard to dictate a posture because you really need to

understand what it is that person needs to do or is trying to do at

that given time. You need to know what that person’s range of

limitations are … It’s something that just has to be looked at a lot

more carefully than just to say that everybody should be sitting

upright with their pelvis locked in and their body balanced.

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Tr. at 3471, 3472 (Schmeler). The ideal position of 90-90 may not be ideal for someone with a fixed deformity such as a dislocated hip or severe hamstring contracture. Tr. at 4819 (Hackett). 90/90/90 seating is an anatomical reference. Tr. at 3472, 3473 (Schmeler). It is not a current standard. “[Y]ou would never find that standard in the ergonomic literature.” Tr. at 3473 (Schmeler).
MAT assessments are not always necessary. Tr. at 3473, 3474 (Schmeler). The PT and PT assistant perform periodic spot checks in the residences, to check on proper positioning and make any corrections. The therapist communicates directly with staff. Tr. at 4847 (Hackett). The PT Department provides continuous in-servicing and training on proper alignment and support. Tr. at 5288 (Hancock).
Ms. Crawford’s observations of positioning based on that given moment are not necessarily reflective of any equipment being improperly fitted. Tr. at 4820, 4821 (Hackett). Ms. Hackett observed:
But in most - - in the cases that I saw, the wheelchairs were - - the back positions were appropriate. They accommodated deformities appropriately. I was really actually very pleased with what I saw. Tr. at 4821 (Hackett). Dr. Kastner noted that “perfect symmetric upright alignment may not always be achieved in individuals with they type of disabilities that are encountered at CHDC.” Tr. at 4276 (Kastner). Dr. Kastner explained why this was not the propoeer standard that Ms. Crawford was using and he stated: But her focus on using proper alignment or symmetric alignment as the standard allowed her to simply walk into a room, physically scan the room visuallym and identify those individuals who were not seated ina perfect or, I’m sorry, in a proper fashion and reach a
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conclusion quickly that those individuals’ care did not meet the standard of care and felt that was quite improper. Tr. at 4277 (Kastner). Dr. Crawford’s average length of observation was only 2.1 minutes, which is an inadequate amount as to the provision of services. Tr. at 4277 (Kastner). The general standard for repositioning a nonambulatory person who is in bed is every two hours. Tr. at 5306 (Hancock). The blanks on the positioning documentation do not necessarily mean that the repositioning did not take place, it only means the documentation did not take place. Tr. at 5307 (Hancock). Dr. Schmeler was asked if it was a substantial departure from generally accepted professional standards if individuals were not repositioned as frequently as indicated by their plans. Dr. Schmeler explained that generally that was true and that staff should comply with the plan, but it would depend on a case-by-case specific basis. Tr. at 35093511 (Schmeler). The Defendants presented evidence on case-by-case specifics and the reasons for the positions and repositioning. The Plaintiff did not investigate or consider any potential reasons for any repositioning that had not occurred per the plan. In addition, the Plaintiff provided no evidence of harm for any alleged lack of repositioning. • C.C., T.S., K.S., D.S., D.W., J.R., L.H., K.M., M.M., K.P., G.Y., B.H., M.L., W.R., T.R., C.C., H.G., M.G., F.M. Ms. Hackett found the individualized positioning programs of C.C., T.S., K.S., D.S., D.W., J.R., L.H., K.M., M.M., K.P., G.Y., B.H., M.L., W.R., T.R., C.C., H.C., M.G., F.M. to be appropriate. CHDC provided alternative positions to adjust wheelchair seating and CHDC considered an individual’s need for more than one position. Tr. at 4815, 4816 (Hackett). • J.P.E., J.P.J., D.B., N.K., D.B., C.J., L.E., A.R. Ms. Hackett reviewed 8 residents (J.P.E., J.P.J., D.B., N.K., D.B., C.J., L.E., A.R.) in greater detail. These were individuals alleged by Ms. Crawford to be poorly aligned. Ms.
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Hackett explained that when you observe these individuals with neurological impairments, their alignment from a visual inspection is often very poor. “[Y]ou really need to look in greater depth in terms of what their fixed deformities are.” Ideal alignment may be impossible. “[I]f someone has a neurological impairment that’s been in place for many, many years, they will have fixed deformities like dislocated hips or contractures or scoliosis, where you can’t get them straight.” Tr. at 4816, 4817 (Hackett). Ms. Hackett found the equipment for J.P.E., J.P.J., D.B., N.K., D.B., C.J., L.E., A.R. fit them appropriately. Tr. at 4820 (Hackett).
• J.P.E. J.P.E. was said to be in posterior pelvic tilt by Ms. Crawford. Posterior pelvis tilt is not
an ideal postural alignment. However, J.P.E. has fixed deformities. Ms. Hackett noted: “He only had 75 degrees of hip flexion available, and he had very short hamstrings … So if we actually tried to seat him in a neutral pelvic tilt at 90-90, it would have been agonizing.” Tr. at 4818, 4819 (Hackett). J.P.E’s positioning accommodations were appropriate and accommodated his deformities. Tr. at 4820 (Hackett). J.P.E. had a “foam-in-place back cushion”, a custom made accommodation. Tr. at 4820 (Hackett). Ms. Hackett asked J.P.E. if he was comfortable and he did not report any discomfort. It is important to get input from those you are evaluating. Tr. at 4820 (Hackett).
• D.B. When Ms. Hackett observed D.B., she was seated properly aligned. Within 10 or 15
minutes of her observation, D.B. managed to move to the side which she seemed to enjoy, in a less than optimal position. Staff let her remain in such position because she enjoyed it.
And then they put her straight again. And that’s okay. It’s okay to let somebody do that for a little while for enjoyment as long as they are optimally aligned and appropriately positioned the rest of the time.
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Tr. at 4821, 4822 (Hackett). D.B. was not in an unsafe situation in any way according to Ms. Hackett. Tr. at 4822, 4823 (Hackett).
• S.B. Ms. Crawford reported that S.B. should be fed midline to prevent choking. S.B. has
athetosis which includes a lot of involuntary movements. Because of the constant movement, she ate in a position where her head was forward and she would turn her head to the side, “which created a reflex that would lock her body into a reflex position, and she had a stable moment where she could get food in her mouth and have a smooth swallow.” Ms. Hackett explained:
But for this particular woman, because of her athetosis, that was the only stable position that she could eat in. When we tried to feed her in the appropriate neutral head forward position, she started to aspirate. Tr. at 4823, 4824 (Hackett). S.B. also communicated, on her communication board, that she liked to have her forehead held by her caregiver while eating and that it helped her. I just asked if I could just observe her trying to take one bite without this extra support. And she could not release the spoon. She bit down on it and had a tonic bite. So everything that they were doing was appropriate. Tr. at 4824, 4825 (Hackett). Ms. Hackett found that having S.B. tilted back slightly, 15 degrees, while she ate, was optimal for S.B. Tr. at 4825 (Hackett). When S.B. is not eating, midline positioning is optimal for her. When she is eating, midline is not optimal for her. Tr. at 4837 (Hackett). • C.J. Ms. Hackett participated with the physical therapists in a MAT assessment for C.J. and for all the others except the one who was having some respiratory issues. Tr. at 4826, 4827
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(Hackett). C.J. had “a severe hamstring contracture on his right side, which caused his pelvis to
shift in his chair. And he had a pelvic obliquity.” He was in “quite a bit of pain” when he was
put all the way back in his chair. Tr. at 4826 (Hackett). So, his positioning was appropriate.
As to Crawford’s claim that there was improper positioning at CHDC, Dr. Kastner described how the ewvidence does not support her:
Yes, I did. Again, I think decubiti is an excellent outcome to study if we want to understand the impact of positioning practices. Ms. Crawford talked about the importance of positioning and made allegations about improper positioning practices at CHDC. The -- and alleged in many specific instances that those poor positioning practices would lead to an increased risk of decubiti. Well, there is an invitation to a study, an invitation to look at the occurrence of decubiti across the facility and see if it confirms what would occur if care practices were deficient. If positioning practices are inappropriate, we should expect an increased risk of decubiti. Based upon data, the rate of decubiti is approximately four per hundred per year. There are people with multiple decubiti, so we would express it as four decubiti per hundred people per year, and that's clearly a reasonable benchmark, a reasonable outcome rate when you compare decubiti risks at other ICF/MRs and data collected by the centers for Medicare and Medicaid services at nursing homes.
Tr. 4080, 4081 (Kastner).
DECUBITI
Decubiti is not an issue at CHDC. CHDC prevents decubiti with its positioning program.
When pressure sores do develop, CHDC provides treatment and management. The Plaintiff has
not presented evidence of any harm with respect to decubiti.
At Ms. Crawford’s deposition, she did not know the rate of decubiti at a facility such as
CHDC. So the rate would not have factored into her opinions in this case. Tr. at 2920
(Crawford). Ms. Crawford did not know the national average for facilities similar to CHDC
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regarding the rate of decubiti. Tr. at 2920 (Crawford). The rate of decubiti at CHDC is much lower than the benchmards. Tr. at 4065 (Kastner). Ms. Crawford did not know that the incidence of pressure sores at CHDC is lower that the incidence in the nationwide population in long-term care facilities. Tr. at 2921 (Crawford). According to Ms. Crawford, the rate of decubiti she calculated for CHDC used a denominator of only those at risk and not the entire population. “[P]eople that walk and talk and move around on their own and, you know, they would not fall into the category of risk or harm, you wouldn’t expect them to have a pressure ulcer.” Tr. at 2961, 2962 (Crawford). Ms. Crawford did not know how CMS reports the rate of decubiti, that is, whether rates for a nursing home includes the entire population. Tr. at 2962 (Crawford). Ms. Crawford could not provide any specifics but stated that there are sources which say that the denominator should be modified for purposes of reporting decubiti. Tr. at 2963 (Crawford). Crawford could not provide any guidance for locating this standard. Tr. at 2963 (Crawford). As a result, Ms. Crawford inappropriately inflated the rate of decubiti at CHDC and she had no basis for comparison to other settings to show what rate would be reasonably expected.
Other than one case where the individual developed decubiti while on a trip with his mother, Ms. Crawford did not know whether the individuals with decubiti developed decubiti at CHDC or outside the facility. Tr. at 2920, 2921 (Crawford). Consequently, she could not tell the Court what number of decubiti actually occurred during care rendered at CHDC. Regarding pressure sores, “the national incidence is somewhere between 14 and 18 percent, with a goal of trying to get that reduced significantly.” There is 13 percent incidence across the population at CHDC. Thus, CHDC is less than the national average. Tr. at 3470, 3471 (Schmeler). At CHDC, the majority of sores were not past stage two. At stages one and two “there’s a lot of
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opportunity to resolve the issue. Stage two is basically superficial redness and maybe some superficial skin break.” Tr. at 3474 (Schmeler). Stage three is “dermis” and stage four is “muscle and bone”. Tr. at 3474 (Schmeler).
The PT Department trains staff on how to avoid decubiti and skin breakdown. Generally, skin breakdown is avoided or reduced through the positioning programs and the seating systems. The PT Department developed guidelines on wound care, which provides description and care of various types of skin breakdown. Tr. at 5280 (Hancock). The PT Department provides direct care staff with written instructions and specific verbal communications on how to care for decubiti. Tr. at 5280, 5281 (Hancock).
WHEELCHAIRS CHDC provides customized wheelchairs. It has its own orthotics shop on campus. The
equipment shop was a “best practices model. That’s really excellent.” Tr. at 3328 (Sheppard). The physical therapy orthotics shop is an on-site workshop. At the shop, custom seating is fabricated for CHDC residents. The shop also contains an inventory of commercial products. Thus, CHDC has the ability to fabricate a wheelchair from scratch or to use commercial items “based on the needs of the client.” Tr. at 3455 (Schmeler). “I don’t think there’s that many people with the expertise or the resources to put together complex seating systems for populations like this.” Dr. Schmeler found the orthotics shop to be “most impressive, almost above standard.” Tr. at 3469 (Schmeler).
Ms. Hackett was “quite impressed” with the physical therapy orthotics shop. Tr. at 4827 (Hackett). Sometimes when you order items from a catalogue, by the time you receive the equipment, the child has outgrown it. The materials used by CHDC in their orthotics shop were
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consistent with what is commercially available. CHDC ordered items that they did not fabricate in their shop. Tr. at 4827, 4828 (Hackett). There are five employees at the physical therapy orthotics shop who work mainly on the construction and modification of wheelchairs and other adaptive devices. Tr. at 5250 (Hancock).
CHDC was able to fabricate items “very rapidly and very specifically for individuals there.” Tr. at 4827 (Hackett). Fitting for a chair to completion can take as little as a few days; longer if special equipment is needed, “but it can be done very quickly. In other centers you can wait months for chairs …” Tr. at 3323 (Sheppard). With respect to specialized equipment, the management of the equipment, the quick turnaround of repairs, the condition of the equipment and its appropriateness was best practice. Tr. at 3328 (Sheppard). With respect to CHDC’s timeliness of the PT orthotics shop, it is “lightening speed, because I’m used to waiting six to nine months in the private sector. And just also having the ability to modify it on site is very beneficial.” In the community, a supplier may need to be called. “Sometimes a client [in the community] has to stay in bed for two or three days waiting for someone to come and fix their wheelchair.” Tr. at 3476 (Schmeler). Generally, from the time a PTO work order is placed, to the time a new or modified chair is completed, the process takes approximately two to three weeks. Tr. at 5269 (Hancock). If it is an integrity issue or emergent issue, the chair is completed in one to two days. Tr. at 5269 (Hancock). In the community, the same process takes four to six months. Tr. at 5271 (Hancock).
Referrals to the wheelchair clinic can be made by anyone, such as direct care staff, a cottage manager, or a team member. Tr. at 3455, 3456 (Schmeler). Wheelchair seating is routinely assessed and monitored. Tr. at 3456 (Schmeler). CHDC does not use a standardized
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assessment form for consideration of powered mobility, but they do follow the same fundamental criteria. Tr. at 3503 (Schmeler).
Need for a new seating system is identified through observation or a mat assessment. Past modifications and considerations are reviewed. Then a PTO work order is completed or the individual will be seen in the seating clinic. The PTO or seating clinic measurements and wheelchair preference is only the initial step to begin the process. Tr. at 5265 (Hancock). Once the initial information is received via a PTO work order or seating clinic, the orthotic shop makes the base frame and supporting structures. Then, a fitting takes place. Depending on the customization, several fittings may follow. If the chair is unique, the PT staff would demonstrate the various features of the chair to direct care staff. Tr. at 5265-5268 (Hancock).
Tilt in space wheelchairs are used at CHDC. “Tilt in space wheelchair is essentially the ability to change the orientation of the seat and back rest on a chair without changing the seat and back rest on a chair.” Such chair promotes well-positioned seating. Tr. at 3457 (Schmeler). Standard manual wheelchairs are also used at CHDC. Tr. at 3458 (Schmeler). Tilt in space wheelchairs are not designed for a population that self-propels. Manual wheelchairs are for those who self-propel. Tr. at 3458 (Schmeler).
There are eight to ten powered wheelchair users at CHDC. Tr. at 3458 (Schmeler). CHDC considers powered wheelchairs for those who can turn on and off the device safely, are able to drive straight, and are able to negotiate fixed obstacles. Such follows “a generally accepted protocol.” Tr. at 3458 (Schmeler). Powered wheelchairs are not a necessity for achieving acceptable standards within the field of occupational therapy. Tr. at 3463 (Schmeler). Providing consideration for powered mobility is within accepted standards of practice, “to at least assess the situation and see if there’s a potential that they can learn.” Tr. at 3463, 3464
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(Schmeler). The PT staff assess for power wheelchairs at any time during the evaluation process and by referral or request by other staff. The PT Department has a trainer power wheelchair. Someone is currently using the power wheelchair training. Tr. at 5259, 5260 (Hancock). Regarding use of power wheelchairs, consideration of seizure activity and comprehension of danger must be taken into account. Tr. at 5260 (Hancock). Approximately ten individuals at CHDC use power chairs as their mode of transportation. Tr. at 5260 (Hancock). Self-propelled wheelchairs provide exercise and use of the individual’s arms. Power wheelchairs do not promote such exercise. Thus, such loss of mobility must be taken into consideration. Tr. at 5260, 5261 (Hancock).
Lap trays are “very commonly used on wheelchairs, for a number of reasons.” For example, they are used as a working surface and for medical purposes (helping the individual stay upright). Tr. at 3478, 3479 (Schmeler). In the ten cases Dr. Schmeler reviewed, none of the individuals with lap trays were using them inappropriately as restraints. Tr. at 3480, 3481 (Schmeler). “Just because someone can’t take their tray off and they don’t have the ability to move themselves doesn’t mean that that tray has become a restraint.” Tr. at 3493. “[I] didn’t see any cases where someone was using a tray but could have been able to self-propel themselves if the tray wasn’t there.” Tr. at 3494 (Schmeler).
Some wheelchairs of CHDC have padded trays. A tray serves a variety of purposes as: a functional activity surface; an adaptive support where a communication device is mounted; a stabilization bar or strap support; sensory support where sensory equipment can be attached; or assistance in upright positioning. Tr. at 5283, 5284 (Hancock). Lateral pads to wheelchair trays provide an alternative to more restrictive supports such as chest straps, shoulder straps, or harness type straps. Tr. at 5284 (Hancock). There may be a few individuals who have
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equipment on their wheelchairs which may be considered a restraint. “But that all passes through the appropriate channels before anything is ever done, and it’s very limited.” The purpose would be to limit their hand and leg movement for safety reasons while they are transported around campus. Tr. at 5308, 5309 (Hancock).
ORAL HYGIENE The dental and hygiene services were the best practices model and met accepted
professional practice. Tr. at 3327 (Sheppard). PT and OT participation in the dental services and oral hygiene was accepted practice. Tr. at 3327 (Sheppard).
CHDC has one full time dentist and one full time oral hygienist on campus. Tr. at 3321 (Sheppard). Residents are seen quarterly for oral examinations and for planning of any dental procedures. Tr. at 3321. There is specialized equipment to minimize aspiration that might occur during oral examination. Tr. at 3322. The specialized dental equipment was best practice. Tr. at 3327 (Sheppard). An oral hygiene progress note is provided for the chart. Tr. at 3322 (Sheppard). Dental hygienists participate in training staff on dental hygiene and in providing services as needed and requested by the houses. Tr. at 3322 (Sheppard).
VI. THE DOJ HAS NOT DEMONSTRATED A VIOLATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) IN THAT THERE HAS NOT BEEN A SHOWING THAT CHDC HAS NOT PROVIDED STUDENTS WITH A FREE AND APPROPRIATE PUBLIC EDUCATION (FAPE) OR THAT STUDENTS AT CHDC ARE NOT RECEIVING THEIR EDUCATION IN THE LEAST RESTRICTIVE ENVIRONMENT
At trial the DOJ failed to demonstrate that CHDC is not in compliance with the IDEA, the students at CHDC are not provided FAPE, or that they are not receiving services in the least
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restrictive environment. Conversely, the State of Arkansas defended the special education services offered at CHDC by showing that the special education department at CHDC is complaint with the IDEA, is meeting and exceeding generally accepted professional standards, and through the IEP process and admissions process, CHDC is also ensuring that students are receiving their education in the least restrictive environment. The Defendants’ education experts both testified that CHDC is providing FAPE and that CHDC is in full compliance with the IDEA. They also explained that FAPE can only be determined by evaluating each student individually. The Department of Justice failed to prove that even one (1) child at CHDC was not provided a Free and Appropriate Public Education at CHDC or was not receiving services in the least restrictive environment.
The Individuals with Disabilities Education Act (“IDEA”) was created to manage federal funds that are allocated to assist the states in educating handicapped children. To receive federal money, a state must provide all handicapped children with “a free appropriate public education” often referred to as “FAPE,” 20 U.S.C. §§ 1400(c), 1414(b)(2)(A), 1415, 1416. A free appropriate public education means special education and related services. Id. “Special education means “specially designed instruction at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” § 1401(16). “Related services are defined as transportation, and such developmental, corrective and other supportive services … as may be required to assist a handicapped child to benefit from special education.” Examples of ‘related services’ identified in the Act are speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services.” § 1401(17).
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Although it is not the only element of the IDEA, FAPE is the key to deciding whether a school district, or in this case an ICF/MR, is in compliance with the Act. The Supreme Court analyzed the IDEA and the concept of FAPE in Board of Education v. Rowley, 458 U.S. 176, 203 (1982). The IDEA requires participating states to provide, at public expense, instruction and support services sufficient “to permit the child to benefit educationally from that instruction.” “The IDEA does not impose upon States any greater substantive educational standard than would be necessary to make such access meaningful.” Id. at 192. In creating the IDEA, Congress expressly stated “the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome.” S. Rep., at 11, U.S. Code Cong. & Admin. News 1975, p. 1435.
“The primary safeguard is the obligatory development of an individualized education program (“IEP”).” Rowley, 458 U.S. 176, 181. The IEP compiles information and goals about a particular student’s educational progress and must include “statements about the child’s current performance, long-term and short-term instructional targets, and objective criteria for measuring the student’s advance.” 20 U.S.C. § 1401(19); 34 C.F.R. § 300.346 (1989).
Typically, the development of an IEP requires the participation of a team of individuals, including the parents, the child’s teacher, designated specialists, and a representative of the LEA. 20 U.S.C. § 1401(19); 34 C.F.R. § 300.344. Once developed, an IEP must be reviewed annually and revised when necessary. 20 U.S.C. §§ 1414(a)(5), 1413(a)(1), (11); 34 C.F.R. § 300.343(d).
The question of whether an IEP is “adequate and appropriate” is a mixed question of fact and law. Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 293 (7th Cir.), cert. denied, 488 U.S. 925 (1988); Gregory K. v. Longview School Dist., 811 F.2d 1307, 1310 (9th Cir.1987). Like other mixed questions, measuring the adequacy and appropriateness of an IEP requires the
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court to determine whether certain facts possess, or lack, legal significance in a given case. In short, the court is required to make its judgment, applying “a legal standard to a particular set of facts.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976). Therefore, the question of whether a student’s IEP complies with the IDEA can only be decided on an individual basis after the Court has considered whether the facts of an individual case are such that the IEP is inappropriate.
Defendants and their experts demonstrated and offered proof that FAPE is and has been provided at CHDC. Even though the DOJ’s sole education expert, Dr. Thibadeau, stated many times that the educational services at CHDC were not in compliance with the IDEA, she could not show even one (1) student for which FAPE was not provided at CHDC or even one (1) parent, for that matter, who was dissatisfied with the education their child was receiving at CHDC.
Dr. Thibadeau also made several inaccurate statements to support her conclusions, which were not supported by anything other than her cursory review of CHDC and a minimal number of educational records, including preliminary notes taken by Arkansas Department of Education Surveyors, which were chosen for her review by attorneys working for the Department of Justice.
Defendants’ experts, Dr. Bruce Gale, a child psychologist and IDEA expert as well as Derek Nye, a special education instructor, transition specialist, and director of the ARC of Cumberland County, New Jersey, both testified that they did independent reviews of the education provided to CHDC students. They also both testified that CHDC is providing FAPE to its students and fully complies with the IDEA. Tr. at 5690 (Gale).
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D. BOARD OF EDUC. V. ROWLEY, 458 U.S. 176 (1982) The Supreme Court’s decision in Rowley is the most pertinent law with regard to this matter because it focused on two issues: (1) what is meant by the Act's requirement of a “free appropriate public education” and (2) what is the role of state and federal courts in exercising the review granted by 20 U.S.C. § 1415. Id. at 186. Rowley relied upon the legislative history of the IDEA to determine whether the IDEA indicated a congressional intent that such education meet some additional substantive standard that the States maximize the potential of handicapped children. The Court ultimately decided that the intent of the IDEA was not to “displace the primacy of States in the field of education, but only for States to receive funds to assist them in extending their educational systems to the handicapped.” Id. at 208. In Rowley, the plaintiff, Amy Rowley, challenged the State of New York because the State denied her parent’s request to provide a qualified sign-language interpreter in all of her classes. The District Court found that although the child was advancing in her classes from grade to grade, she was not performing as well academically as she would without her handicap and, therefore, was not receiving a “free and appropriate public education.” The Court of Appeals affirmed this decision. The United States Supreme Court disagreed, however stating: “noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children.” Id. at 189. “Whatever Congress meant by an ‘appropriate’ education, it is clear that it did not mean a potential-maximizing education.” Id. at 197. In its decision, the Supreme Court discussed at length what was meant by the term “free appropriate public education” focusing mainly on the term “appropriate.” In doing so, the Supreme Court discussed legislative history of the IDEA, the language of the statute and the two
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cases which served as the impetus for the creation of the IDEA, Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (Ed. Pa. 1971) and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.C. 1972). Rowley at 193. Both cases held that handicapped children must be given access to an adequate, publically funded education, and neither case assured that any particular substantive level of education was required. Id. at 193. The Supreme Court found that in the Act, Congress did not use the word “appropriate” as a term of art. Id. at 197. “The term ‘free appropriate public education’ means special education and related services which (a) have been provided at public expenses, under public supervision and direction, and without charge, (b) meet the standards of the State educational agency, (c) included an appropriate preschool, elementary, or secondary school education in the State involved, and (d) are provided in conformity with the individualized education program (IEP) required under section 1414(a)(5) of this title.” Id. at 188. These preceding four items are the substantive requirements of the IDEA. Further, the Supreme Court specifically stated “to require the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go.” Id. at 199. “The District Court and the Court of Appeals erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children. Desirable as that goal might be it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children and to provide them with access to free public education.” Id at 200. “We therefore conclude that the ‘basic floor of opportunity’ provided by the act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Id. at 201. “Entrusting a child’s education to state
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and local agencies does not leave the child without protection.” Id. at 208. “Congress’ intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.” Id. at 208.
The Supreme Court explained that the IDEA recognizes that federal courts cannot run local schools. Local educators deserve the latitude to determine the individualized education program most appropriate for each disabled child. Just as CHDC deserves the latitude, in conjunction with the Arkansas Department of Education, to determine what is appropriate for each child’s individual education program. In Rowley, the Supreme Court intended to instruct other courts that the IDEA does not deprive these educators of the right to apply their professional judgment. Rather, it establishes a basic floor of opportunity for every handicapped child. States must provide specialized instruction and related services “sufficient to confer some educational benefit upon the handicapped child,” but the Act does not require “the furnishing of every special service necessary to maximize each handicapped child's potential.” Id. at 201.
Ultimately, the Supreme Court made an individual determination of whether Amy Rowley was denied a free appropriate public education by evaluating the legislative history of the IDEA, the intent of Congress, the express language of the Act and the detailed facts of Amy Rowley’s education program. The Court held that even though she was not afforded a sign language interpreter, the overall educational program she was afforded did not fail to comply with the substantive requirement of the Act. The Court also stated that the “lower courts should
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not have concluded that the Act requires the provision of a sign-language interpreter.” Id. at 210.4
E. STUDENTS’ INDIVIDUAL EDUCATION PROGRAMS (IEP) ARE INDIVIDUALIZED AND CALL FOR AN APPROPRIATE AMOUNT OF TIME IN SPECIAL EDUCATION CLASSES DETERMINED ANNUALLY BY THEIR INDIVIDUAL EDUCATION PROGRAM TEAM
Students at CHDC have an IEP meeting annually where the IEP team discusses what is needed for each student at CHDC to obtain a meaningful education. Tr. at 2118 (Milum). The minutes of special education class are listed in the IEP. Tr. at 2382-2383 (Thibadeau).
Students’ IEPs are individualized, therefore, an individualized review of each IEP is required in order to determine whether FAPE was or was not provided. Tr. at 5639 (Gale). As part of a student’s school day, and in line with the IDEA, students at CHDC receive special education instruction as well as related services as part of their school day. Tr. at 6449-6450 (Buck). Related services are occupation therapy, speech therapy, physical therapy, activities of daily living, toileting skills, psychology services, money management and job training. Tr. at 6449-6450 (Buck). Students at CHDC receive meaningful free and appropriate education related training during the entire day up to 9:00 p.m. Tr. at 5551 (Gale).
It is the position of the Arkansas Department of Education that habilitation training and activities of daily living are acceptable as part of an educational school day. Tr. at 3043-3044 (Harding). The Arkansas Department of Education does not require students at CHDC to attend special education instruction for 6 hours a day. Tr. at 3041 (Harding). When a student is placed in an ICF/MR, the Arkansas Department of Education has found that their need for medical or
4 This last item is particularly important in that the DOJ has argued that the State is in violation of the IDEA because they have not provided a full time sign language interpreter to CHDC student, L.W. Even though Defendants presented testimony that CHDC did provide a sign language interpreter for a number of hours per week to L.W. and direct care staff were instructed on the signs that L.W. is familiar with, DOJ still argued at trial that this was not sufficient and was a clear violation of the IDEA. Tr. at 6490-6492, 6494-6495, 6529 (Buck). What is clear is that the Supreme Court of the United States disagrees with this argument, ironically the same unsuccessful argument that was advanced by Amy Rowley.
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psychological treatment and intensive training supersedes their need to sit for six hours in a classroom. Tr. at 3041-3042 (Harding). Under Rowley, “a local educational agency simply must show that each IEP is reasonably calculated to confer an educational benefit and to allow the student to progress adequately from grade to grade.” Id. at 204. The IDEA does not require the School District to show that the IEP will confer an educational benefit. Not only would this misstate the standard, but it would constitute an impossible burden to meet. No school can guarantee that an IEP will prove successful or that minutes in a classroom are more beneficial than related services. The federal regulations explicitly disclaim the notion that an IEP provides a guarantee of any sort. See 34 C.F.R. § 300.350. “But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful.” Rowley at 204. CHDC provides related services to help students improve behavior, communication skills, coping with medical conditions and becoming more sufficient so that students can transition back to their homes and public schools. The related services provide the student with ways to manage their disabilities which in many cases acted as a barrier for those students in public schools. CHDC is providing its students with a meaningful education by providing its students with special education instruction as well as needed related services.
Each student at CHDC has an IEP in accordance with the IDEA. The members of the IEP team are present to make professional judgments regarding what is best for each individual student and what is necessary to make each student’s education meaningful. Tr. at 5135 (Nye). “The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those
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obtainable by children at the other end, with infinite variations in between.” Id. at 202. It is not always immediately clear what is best for each student, particularly when a student is diagnosed with profound mental retardation, by only completing a cursory review of a student’s educational records. A more detailed review is required which includes a child’s parents, treating professionals and special education providers. These reviews are conducted at the student’s IEP meeting where the child’s treating professionals, teachers and the child’s parents or guardian discuss the child’s individual situation and agree on how they can make education services meaningful for that child.
This decision must not be taken away from the State and the child’s parent or guardian. The Supreme Court has already stated in the Rowley that it is not the job of the federal courts to make such determinations, they are specifically reserved for the States and the appropriate education agencies; in this case, the State of Arkansas and the Arkansas Department of Education. It was the DOJ’s burden to show that there are students at CHDC who are not benefiting from the accommodations made for them by the facility or that they are not provided with an IEP. The DOJ argued that students will not elevate to regular education because they are not provided enough special education services. However, this misstates the intent of the IDEA and the purpose of special education. “The IDEA does not contemplate that special education is like the minor leagues, where success will elevate a student into the major leagues of regular education.” Board of Educ. of Downers Grove Grade School Dist. No. 58 v. Steven L., 898 F. Supp. 1252,1262 (N.D. Ill. 1995). Courts have held that the minutes a student spends in a classroom are not a deciding factor of whether FAPE is provided. “The IDEA, however, does not require that every minute of the school day be devoted to these endeavors; each IEP is individualized to the needs of each disabled child, some of whom might need more than 180
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minutes of special education, some of whom might need less.” Barber v. Bogalusa City School Bd. 2001 WL 667829, 6 (E.D.La. 2001). Barber stated this notion correctly in recognizing that determining whether FAPE was provided under the IDEA is an individual inquiry. The DOJ was charged with proving at trial that there were students at CHDC who needed more minutes in a classroom and that those students were denied those minutes of special education and, therefore, denied FAPE. In fact, Susan Thibadeau was questioned on what “is enough” in terms of minutes that the students spend in a special education classroom and she could not definitively say. Tr. at 2195 (Thibadeau). The reason Ms. Thibadeau could not provide a definitive answer to the Court’s question is because this is an inquiry that must be done on a case-by-case basis – student by student. What might be enough time in a special education classroom for one student may be not enough for another. The DOJ has not shown that any amount of minutes for any student at CHDC was inappropriate or that the time a student is participating in related services resulted in a loss of educational opportunity.
In an attempt to prove that students at CHDC are not spending an appropriate amount of time in special education classes, the DOJ presented an IEP from Sheridan School District, the district that a CHDC student attended before admission to CHDC. However, as Defendants’ educational expert, Bruce Gale, pointed out, it is not an appropriate comparison and it then became clear that the DOJ was mistaken in its position. Dr. Gale testified that the IEPs from the student’s last placement could not be compared to the student’s IEP at CHDC because the IEPs list minutes of special education per week and students at CHDC have more weeks of class than
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students in Sheridan School District. Therefore, a yearly average is more appropriate when
evaluating how many minutes in special education students at CHDC are receiving. 5
The Defendants’ educational expert, Dr. Gale, testified that he personally witnessed many
students practicing functional academics throughout their day. Tr. at 5692-93 (Gale). So even if
a child is not in special education class, they are still learning functional academics such as using
silverware, communicating and attention skills.
That being said, these are all issues of methodology, and as discussed earlier, Rowley
specified that “questions of methodology are for resolution by the States and Courts lack the
specialized knowledge and experience necessary to resolve persistent and difficult questions of
educational policy.” Rowley at 208. The minutes that each student spends in special education
class is something that is determined on a case-by-case basis at CHDC and listed in each
student’s IEP. How many minutes each student at CHDC should spend in a special education
class is a question of educational policy. Therefore, it is not something that a Court can
5 The DOJ asked defense expert Bruce Gale to comment on the IEP of C.W. when C.W. was enrolled at Sheridan School District and to compare the minutes of special education he was receiving to what his receiving now at CHDC. In response to these exhibits, Dr. Gale testified:
“Well, boy, we've got an apple and Bermuda comparison here. You have to do a yearly average. So is it 450 per week times a year or 1,250 per week times a typical school year? These aren't comparable. I understand the numbers look the same, but you have to understand for the total year how many minutes of education are occurring, and I just remembered -- I mean, you know, first of all, I mean, I remember C.W. He is the child who reported to me that he killed animals and he is the child who can't tell time. And he is the child who has verbal skills but talked about messing up, and messing up means killing animals and fighting with his brother. And when I looked into more details of that, I remember that his emotional behavior is extraordinarily unstable. That's C.W.” Tr. at 5772 (Gale).
Some students at CHDC, C.W. in particular, come with severe emotional and behavioral disorders where they require more related services than minutes of classroom instruction. C.W. is a prime example of a student at CHDC who the IEP team and parents are working with to resolve these severe difficulties so that he can return to public school. Interestingly, DOJ did not indicate to the Court whether C.W. has made progress since he has been at CHDC, either socially or academically. DOJ only presented the minutes in the classroom and expects this Court to make a cursory decision based on that alone, which would not only be past any latitude the Supreme Court gave to lower courts, but would also be a disservice to C.W. and other students like him. It also ignores the fact that a team of professionals together with the parent is making professional judgments regarding his education and what is individually best for him. This is a judgment that should be left to the IEP team to make.
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determine for Arkansas students across the board or at CHDC. To determine how many minutes a particular student should have in a special education classroom would require this Court to make a decision for a student that requires specialized knowledge of how many minutes that student can tolerate and how many other related services are needed to accommodate the student, what issues caused them to leave their home school district and what would be needed for a meaningful education for the student. The Supreme Court has ruled that this is not an appropriate decision for a Court to make and it should be left for resolution by the State agencies.
F. THE IDEA DOES NOT REQUIRE A REGULAR EDUCATION TEACHER TO ATTEND IEP MEETINGS
CHDC is not required to have a regular education teacher at every IEP meeting if the child is not likely to be participating in regular education classes. CHDC does not violate IDEA procedural safeguards by having a special education teacher attend an IEP, when the student is only receiving special education classes.
Prior to 1997, the IDEA provided that the school district was obligated to include the student’s current teacher as a member of the IEP team. In 1997, Congress revised the IDEA to require the inclusion of ‘at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)’ and ‘at least one special education teacher, or where appropriate, at least one special education provider of such child.’ M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 643 (9th Cir.2004) (quoting 20 U.S.C. § 1414(d)(1)(B)). That court found that the school district did not violate the procedural safeguards of the IDEA by not including the student’s regular education teacher or even current teacher for that upcoming year. M.L., 394 F.3d 634, 643. There are two material facts at issue here – (1) whether CHDC includes a regular education teacher at the IEP meetings and (2) whether the decision not to include a regular education teacher results in the students’ loss of an
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educational opportunity. If the exclusion of a regular education teacher did not result in the loss of an educational opportunity then there is no violation of the IDEA. The Defendant developed evidence at trial which supported the fact that if a student is participating in any general education curriculum, they will not be admitted to CHDC. The 5 conditions to be admitted to CHDC are (1) behavior that could not be managed in the community setting, (2) medical conditions that could not be managed in the community setting, (3) any student who was enrolled in general education classes could not be admitted to CHDC, (4) student could not be a safety risk to the other students at CHDC, and (5) there has to be a peer group for that individual at CHDC in order for them to be admitted. Tr. at 5145-5146 (Nye).
The IDEA allows CHDC to include only special education teachers in the IEP process if the student is not attending regular education classes and is not likely to attend regular education classes. Id. Current CHDC students do not participate in regular education services and the DOJ has produced no evidence that any particular student at CHDC is participating in regular education services or is likely to participate in regular education classes, during the course of the year following the IEP meeting. The DOJ cannot show that CHDC failed to comply with the IDEA merely because regular education teachers do not participate on IEP teams at CHDC. The DOJ is required to show that there are children at CHDC who otherwise would be participating in regular education classes and are not afforded the benefit of a regular education teacher at the IEP meeting.
The permissible exclusion of a regular education teacher at IEP meetings is also supported by the interpretive notes to the relevant IDEA regulations, which provide that “[t]he regular education teacher who serves as a member of a child’s IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can
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participate in discussions about how best to teach the child.” 34 C.F.R. PART 300 APPENDIX A, # 26. The students at CHDC cannot participate in general education classes and no portions of the students’ IEP’s are implemented by regular education teachers. The students at CHDC do not participate in regular education classes due to the severity of their disabilities, which in many cases include serious health and behavior problems. Some of the children at CHDC were moved to CHDC after the child’s school or their parent/guardian determined that it was no longer possible for them to attend classes in the public school system. The students at CHDC have assessments that indicate that they are not likely to succeed in regular education classes, and, therefore, no regular education classes are recommended and no regular education teacher is responsible for implementing any portion of the IEPs. Therefore, according to the interpretive notes, no regular education teacher is required to attend IEP meetings at CHDC.
In M.L. v. Federal Way School Dist., the court held that a harmless error standard should be applied in deciding whether or not the absence of the regular education teacher was such that the student was denied a FAPE. M.L., 394 F.3d at 636. In order for the absence of a regular education teacher to be a procedural violation that results in a denial of a FAPE, the absence must be such that it results in a loss of educational opportunity or seriously infringes upon the right of parental participation in the IEP process. Id. at 658. The DOJ has failed to provide the Court with any facts to show that any student at CHDC has been deprived of an educational opportunity. Further,
while a regular education teacher must be a member of the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not (depending on the child’s needs and the purpose of the specific IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting.... The extent to which it would be appropriate for the
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regular education teacher member of the IEP team to participate in IEP team meeting must be decided on a case-by-case basis. 34 C.F.R. Part 300 APPENDIX A, # 24. When the relevant law is applied to the circumstances of students at CHDC, it is clear that CHDC has not denied any of its students a free and appropriate public education by failing to include a regular education teacher at the IEP meetings.
The Defendants proved at trial that each student is evaluated to determine whether it is likely that he or she would be able to participate in the regular education environment in the upcoming year. Once that determination is made, CHDC determines whether a regular education teacher should be included in the IEP meetings. The law is clear that the determination of whether a regular education teacher is included in the IEP meeting should be done on a caseby-case basis. See e.g. M.L., 394 F.3d 634. The DOJ and its expert have not done a case-bycase analysis of even one (1) child at CHDC and has not proven that any child at CHDC is participating in regular education without the benefit of the participation of a regular education teacher at the IEP meeting, and, therefore, the DOJ has failed to show that any student at CHDC has been denied FAPE.
Additionally, the recent Arkansas Department of Education monitoring report found no deficiencies at CHDC for having only special education teachers at the IEP meetings. Tr. at 2396 (Thibadeau). As stated previously, the IDEA does not require specific standards to be met, this is the job of the Arkansas Department of Education. As long as CHDC is meeting the requirements of the State agency as well as meeting the other 3 substantive requirement of the IDEA, then they are in compliance with the IDEA and no court action is appropriate. Therefore, since the substantive requirements of the IDEA have been met, and the DOJ did not
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meet their burden in showing any CHDC student who did not receive an educational benefit from the education they received there, CHDC is not in violation of the IDEA.
G. THE IDEA DOES NOT REQUIRE A LOCAL EDUCATION AGENCY REPRESENTATIVE TO ATTEND IEP MEETINGS AND THE DEPARTMENT OF JUSTICE HAS FAILED TO SHOW THAT AN LEA IS NOT PRESENT FOR IEP MEETINGS AT CHDC
As a procedural matter, the IDEA requires states and local education agencies (LEAs) to “assure that handicapped children and their parents...are guaranteed procedural safeguards with respect to the provision of free appropriate public education.” 20 U.S.C. § 1415(a). A LEA is a local representative who is familiar with the general curriculum, to supervise the course of study of special education and have knowledge of the resources of the agency. Tr. at 5212-13 (Nye). An IEP team member can qualify as an LEA if that person can satisfy all three requirements. Tr. at 5212-1523 (Nye). CHDC consistently invites the local education agency representative to each student’s IEP meeting. Tr. at 5214, 2395 ( Nye, Thibadeau). The particular LEA invited depends on the school district where the child resided immediately before CHDC admission. Although the IDEA does not require that an LEA attend each IEP meeting and CHDC has no authority to compel the LEA’s attendance, CHDC continues to invite an LEA to each IEP meeting. LEA’s usually affirmatively request that CHDC conduct subsequent IEP meetings without their attendance. Tr. at 5214 (Nye).
Susan Thibadeau, Derek Nye, Thoronda Smith and Judy Buck all testified that CHDC routinely invites an LEA to each IEP meeting held at CHDC. Tr. at 2157, 2395, 5214 (Smith, Thibadeau, Nye). However, LEA representatives can choose not to attend the IEP meetings even if they are invited. Tr. at 5214 (Nye). Susan Thibadeau also testified that the ADE monitoring report of June 16, 2010 cited no concerns on the issue of LEA representative attending IEP
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meetings. Tr. at 2396 (Thibadeau). Marcia Harding furthered this point when she testified that “nothing can be done to compel outside agencies to attend the IEP meeting.” Tr. at 2992 (Harding).
The IDEA expressly permits members of the IEP team to be excused. 28 U.S.C. § 1414(d)(1)(C). Legislative history for this section of IDEA demonstrates Congress’ recognition that requiring all IEP team members to attend all meetings concerning a disabled child may be unnecessary and onerous in some circumstances. See H. Rep. No. 108-77, at 110 (2003) (noting that the 1997 amendments to the IDEA “allow local educational agencies to better utilize their personnel who are not needed for a particular meeting”). Legislative history reflects a similar intent to streamline the “manifestation determinations review” (“MDR process”), as the statute was amended in 1997 to require only “relevant” members of the IEP team to make manifestation determinations, as opposed to the entire IEP team. Id. at 116-20. If the LEA believes certain statutorily-required IEP team members are not essential to the MDR process, those persons may be excused.
Once the IEP is completed, CHDC sends the LEA a full copy of the student’s IEP for the LEA’s review, along with a letter requesting that the LEA contact CHDC if the LEA has any questions or comments Tr. at 5214 (Nye). As to students at CHDC, LEA’s do not provide access to the general curriculum, make no formal referral for educational services at CHDC, and bear no financial responsibility for the educational costs of the students at CHDC Tr.at 2395 (Thibadeau). CHDC has had many LEA’s attend the administrative staffing IEP meetings either in person or by teleconference Tr. at 2157 (Smith). At trial, CHDC produced examples of letters sent to the LEA’s notifying them of each IEP meeting for children in that LEA’s district Tr. at 6476 (Buck); Def. Ex. 472.
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CHDC has complied with the IDEA on this issue by inviting the appropriate LEA to each IEP meeting. CHDC furthers its compliance with the IDEA by sending a copy of each student’s IEP to the LEA for its review. CHDC has complied fully with this provision of the IDEA and the Arkansas Department of Education is satisfied with CHDC’s efforts to invite LEA’s to the IEP meetings. In short, LEA’s are not required to attend, and CHDC, ADE or DOJ cannot legally compel them to attend. Also, the fact that they have not attended, is not a violation of the IDEA and does not mean that CHDC is not providing students with FAPE. Whether an LEA attends the meeting or not, the topic of least restrictive environment is still routinely discussed at each IEP meeting Tr. at 5216 (Hancock). Therefore, no child at CHDC has been denied FAPE or denied any rights afforded them by the IDEA just because an LEA is not in attendance at their IEP meeting.
H. CHDC REQUESTS THE ATTENDANCE OF OUTSIDE AGENCIES AT IEP MEETINGS AND PARENTS/GUARDIANS HAVE THE RIGHT TO EXCLUDE THOSE AGENCY REPRESENTATIVES FROM IEP MEETINGS
Beginning at age sixteen (16), the IDEA requires that a student’s IEP include a statement of needed transition services. 20 U.S.C. § 1414(d)(1)(A)(vii)(II). Transition services are based on a student’s needs and interests and “promote movement from school to post-school activities, including ... vocational training, integrated employment ... continuing and adult education, adult services, independent living or community participation.” 34 CFR § 300.43 (a). They may include “instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.” 20 U.S.C. § 1401(30). See also Tammy S. v. Reedsburg School Dist., 302 F.Supp. 2d 959, 976 (W.D.Wis. 2003).
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“To the extent appropriate, with the consent of the parents or a child who has reached the age of majority ... the public agency must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.” 34 C.F.R. § 300.321(b)(3) (emphasis added). As the law requires, students’ parents’ or guardians’ consent is required before CHDC can invite outside agencies to the student’s IEP meeting.
The material fact at issue with this requirement is whether the parent consents to CHDC inviting an outside agency to participate in the IEP meeting to provide transition services. CHDC obtains permission from a student’s parent or guardian before inviting any outside agency to an IEP meeting, including agency representatives who may be able to provide transition services. Tr. at 3038 (Harding). For each student reaching the age of sixteen (16), CHDC routinely requests that the student’s parent or guardian give permission to invite an agency representative to provide the student with transition services. If the parent or guardian consents, an agency representative is invited to discuss transition services. Tr. at 2992, 2397 (Harding, Thibadeau).
The DOJ has offered no evidence to support its conclusion that Defendants are not complying with this provision. CHDC special education staff routinely attempt to obtain parent/guardian consent by sending the parent/guardian a form entitled “Permission for Consent Prior to Inviting Agencies Related to Transition” prior to each IEP meeting. Tr. at 6476 (Buck). That document identifies numerous agencies that might be helpful in planning transition strategies and activities for a CHDC student. The “Permission for Consent Prior to Inviting Agencies Related to Transition” describes the agency to provide transition services to the parent/guardian and requests permission of the parent/guardian to invite the listed agencies. After CHDC sends the request forms to the parent/guardian, the parent/guardian is asked to fill
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out the form and agree to allow an outside agency to attend the IEP meeting to assist the student with any transition services that may be relevant. Many times, the parent/guardian chooses not to allow an outside agency to attend the IEP meeting, which is his/her right to do. Tr. at 6476 (Buck). CHDC is complying with the procedural requirements of the IDEA by requesting parents’/guardians’ permission to include an outside agency representative to assist with transition services. This documentation and the corresponding testimony make clear that CHDC is complying with the IDEA, and at the very least, show that the DOJ has not met its burden of showing that CHDC is not in compliance with the IDEA.
I. DEPARTMENT OF JUSTICE HAS NOT SHOWN THAT CHDC HAS NOT PROVIDED APPROPRIATE TRANSITION SERVICES FOR ITS STUDENTS
The IDEA defines “transition services” as “a coordinated set of activities for a student with a disability that (a) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (included supported employment), continuing and adult education, adult services, independent living, or community participation; (b) is based upon the individual student's needs, taking into account the student's preferences and interests; and (c) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.” 20 U.S.C. § 1401(30).
“It is important to distinguish between the statement of transition services in the IEP and the provision of transition services.” Urban by Urban v. Jefferson County School Dist., 89 F.3d 720,
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726 (Colo.,1996).6 Technical deviations from the requirements of section 1401(a)(20), such as the failure to include a statement of transition services, do not render an IEP entirely invalid, and to hold otherwise would “exalt form over substance.” Doe v. Defendant I, 898 F.2d 1186, 1190 (6th Cir.1990); See also Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir.1990) (stating that defendant's failure to provide parent with written notice of new IEP meeting was error of “technical noncompliance which did not result in any substantial deprivation”); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir.1990) (refusing to award compensatory education when “the procedural faults committed by the Board ... did not cause [the child] to lose any educational opportunity”).
“The ‘benefit’ conferred by the [IDEA] and interpreted by Rowley must be more than de minimis.” Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989); see also Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022, 1025-26 (10th Cir.1990) (“[T]he ‘appropriate’ education required by the Act is not one which is guaranteed to maximize the child's potential.”), cert. denied, 500 U.S. 905, 111 S.Ct. 1685, 114 L.Ed.2d 79 (1991).
6 In Urban by Urban v. Jefferson County School Dist., 89 F.3d 720, 726 (Colo. 1996), the Court reviewed this same issue for a student whose IEP lacked any explicit statement of transition services. The student’s IEP also failed to designate a specific outcome for the student once he turned 21 and it did not contain a specific set of activities for meeting that outcome. The issue that the court considered was whether the student was denied an appropriate education due to the IEP’s lack of any statement regarding transition services. The Court stated “This deficiency, however, did not amount to a denial of an appropriate education. Although the IEP did not contain a specific statement of transition services, Gregory was not denied such services. The IEP contained language which addressed Gregory’s transitional needs, such as community awareness, daily living skills, and the ability to pay for purchases. In addition, these services were focused on teaching Gregory to generalize and transfer skills from one environment to another.” “Gregory’s IEP was reasonably calculated to enable him to receive benefits. In the context of a severely disabled child such as Gregory, the benefit conferred by the IDEA and interpreted by Rowley must be more than de minimis.” Id at. 727. Again it is clear that Courts need to do an individual inquiry to be able to determine whether a student is denied FAPE.
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Even in instances where a student does not have an explicit statement of transition services, the Courts have held that this is not enough to hold that the school district was not complying with the IDEA. At CHDC, once a student turns 16 years old, their IEP contains an “Individual Transition Plan.” Tr. at 6476 (Buck). The State is in complete compliance with the IDEA with regard to transition services. The evidence is clear that CHDC students’ IEPs conform to the requirements of the IDEA by explicit inclusion of transition services. Also, the evidence supports that CHDC sends parents a list of outside transition services who could attend the IEP to assist with transition services if the parent chose to have them present. Ms. Thibadeau testified that she evaluated forms that were sent from CHDC to parents and guardians asking them for permission to invite transition specialists to the IEP meeting. Tr. at 2300 (Thibadeau). Defense witness, Judy Buck, a CHDC Special Education Supervisor, reinforced this point by identifying Defense Exhibit 472 as an example of the document that is sent to parents of students 16 years or older at CHDC regarding transition service providers who are willing to attend the student’s IEP. Judy Buck also testified that a transition plan is always in place within the student’s IEP by the time the student turns 16. Tr. at 6476 (Buck). Thoronda Smith also testified that Transition services are provided at CHDC to help the individuals to learn words or techniques, performing out in the community or to living in a community, functional safety signs, cooking, cleaning, washing and drying clothes. She also testified that she is involved by administering the life centered career assessment test which she uses to develop a student’s transition goals and objectives. Tr. at 2168 (Smith).
The IEPs that were entered into evidence are further proof of CHDC’s efforts to provide students with transition services. As further evidence of this, the DOJ could not present even one (1) student who did not have a transition plan. Instead they resorted to picking at various
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minute details regarding whether the transition plans took into account the student’s interests. In fact, Ms. Thibadeau testified about a transition plan that in her opinion was deficient because it failed to take the student’s interests into consideration. Tr. at 2354-55 (Thibadeau). Defense witness Judy Buck, however, testified that CHDC uses the Life Centered Career Education Assessment, a professionally accepted tool in the field of education, which assesses the student for a vocation.7 Tr. at 6464 (Buck). Interestingly, Susan Thibadeau did not evaluate that student’s Life Centered Career Assessment to see how that assessment aided CHDC in their inclusion of certain vocations in which to train that particular student. Thibadeau also did not indicate in her testimony or in her expert report that she discussed this transition plan with the student’s guardian or with the student. So it should be assumed that this is the vocation that the student actually chose for themselves through the assessment tool.
Nevertheless, the evidence supports that each student at CHDC has an IEP that is reasonably calculated to enable the students to receive educational benefits and transition services, and that transition plans are present and functional for each CHDC student 16 or older. And as case law dictates, it is not whether the IEP explicitly states transition services, but rather, the test is whether the IEP contains language that addresses the student’s transitional needs. Therefore, the record supports the proposition that not only do CHDC students have IEPs which address transitional needs, but they are also receiving assessments specific to what the student wants as a vocation. Once the assessment is complete, the student is provided with a complete transition plan. This is just one example of how CHDC complies with the IDEA and succeeds in
7 Judy Buck described the Life Centered Education Assessment stating “It has different jobs in it. And it has pictures of all the jobs, so you can use it with someone whether they are verbal or not. And it will have like three pictures together. And it may have gardening and car maintenance and someone working in a restaurant. And they mark which picture as they go through. Then at the end, it's analyzed by a data sheet. And it shows --you add all their scores up of which pictures they mark. The pictures fit into different categories. And the majority, you know, that they have marked in a certain area will tell you what their interests are. It will show whether they are into like gardening and plants and that or if they are into automotive or if they are into public service.” Tr. at 6464 (Buck).
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providing their students with not only FAPE, but also the most comprehensive education possible.
J. STUDENTS AT CHDC ARE NOT REQUIRED TO HAVE STATEWIDE ASSESSMENTS
CHDC special education staff do not perform Statewide Assessments because CHDC is exempt from the No Child Left Behind (“NCLB”) requirements. NCLB does not apply to ICF/MR 24-hour care and supervised living residential facilities.
The Elementary and Secondary Education Act (“ESEA”) permits states to voluntarily participate in a federal-state partnership in the area of public education. In return for federal money, participating states agree to comply with federal requirements that are designed to enhance the quality of elementary and secondary education and to further academic achievement. 20 U.S.C. § 6301, et. seq. The NCLB Act amended ESEA to “ensure that all children have a fair, equal and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging state academic achievement standards and state academic assessments.” Id. As a means of holding states accountable for the federal funding they receive, NCLB requires states to make annual assessments of all public school students and to use the results of these assessments in determining whether schools and districts have made adequate yearly progress toward the NCLB’s overriding goal of academic proficiency for all students.
Defendants do not challenge the aim of the NCLB, however, Defendants do challenge the DOJ’s assertion that the students at CHDC are required to participate in statewide assessments. CHDC is exempt from NCLB because CHDC does not exist for the primary purpose of obtaining an education. It is not an elementary or secondary school as defined by Arkansas law. While CHDC must offer education services to children who are school-aged, CHDC is not designated under state law as a school or school district. Therefore, CHDC is not subject to
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NCLB standards for core academic subject area instruction nor is it required to have the school-
aged children at CHDC participate in statewide benchmark testing programs.
The ADE is in regular contact with CHDC education administrators. In fact, in August of
2009, the ADE specifically communicated to CHDC that CHDC is exempt from the required assessments of NCLB because CHDC is a 24-hour residential care facility. 8 Tr. at 3048
(Harding).
Additionally, there is no correlation between a special education student being assessed,
and a special education student participating in the general education curriculum. All CHDC
students access the Arkansas Framework General Education Curriculum through the
development and instruction of their formal IEP goals and objectives. CHDC students are
assessed regularly for educational progress. The ADE June 16, 2010 report, which noted no
concerns with this issue, is further support for this conclusion.
K. CHDC STUDENTS ARE RECEIVING AN EDUCATION IN THE LEAST RESTRICTIVE ENVIRONMENT
The Supreme Court requires lower courts to engage in an analysis of whether a student’s IEP
satisfies the substantive standards of the IDEA. The Court in Rowley noted that the IDEA
8 Marcia Harding explained why CHDC is exempt when she testified at trial. “In the beginning, when our state plan was developed for consistency with No Child Left Behind, it was indicated and accepted by the U.S. Department of Education peer review that since they were not elementary and secondary schools, that they would not be necessary to include them, that NCLB applied only to secondary and elementary public schools. So at the time we were under that impression and, therefore, the rules promulgated by the Department of Education excluded these types of nonpublic school settings, nontraditional programs. They had programs of education, but they were not public schools. And so at the time, we thought we were doing what we -- what was approved and appropriate. We have since begun to move in the direction – beginning this year, we are including our incarcerated students. And so the movement now is toward looking at how to best involve and engage these other students, but we were not found to be out of compliance for not having had them in there before because these are not defined to be elementary and secondary schools.” Tr. at 3048 (Harding).
Therefore, they were not included in the statewide testing program.
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“requires participating States to educate handicapped children with non-handicapped children whenever possible.” Rowley, 458 U.S. at 202.
Title 20 U.S.C. § 1412(5)(a) requires that participating States establish “procedures to assure that to maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling or other removal of handicapped children from the regular education environment occurs only when the nature or severity of the handicap is such that the education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(5)(a).
“Correctly understood, the correlative requirements of educational benefit and least restrictive environment operate in tandem to create a continuum of educational possibilities.” Rowley, 458 U.S. at 181. “To determine a particular child’s place on this continuum, the desirability of mainstreaming must be weighed in concert with the Act’s mandate for educational improvement.” Lachman, 852 F.2d at 296. “Assaying an appropriate educational plan, therefore, requires a balancing of the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum. Neither side is automatically entitled to extra ballast.” Roland M. v. Concord School Committee, 910 F.2d 983, 993 (1st Cir.1990).
The IDEA's implementing regulations provide that disabled children are to be educated in the least restrictive environment (“LRE”). 34 C.F.R. § 300.550(b)(1). Therefore, a school district must provide that instruction in the least restrictive environment, which means the disabled student is to be educated with nondisabled students to the “maximum extent appropriate.” Pachl v. Seagren, 453 F.3d 1064, 1067 (8th Cir.2006) ( citing 20 U.S.C. § 1412(a)(5)). Consequently, “a disabled student should be separated from his peers only if the services that make segregated
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placement superior cannot ‘be feasibly provided in a nonsegregated setting.’ “ Id. (quoting Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.1983)); see also T.F. v. Special Sch. Dist. of St. Louis County, 449 F.3d 816, 820 (8th Cir. 2006) (noting IDEA reflects a “strong preference” that disabled children attend regular classes with nondisabled children and a presumption in favor of public school placement).
The Eighth Circuit explains that the mainstreaming requirement “is inapplicable where education in a mainstream environment ‘cannot be achieved satisfactorily.’” Pachl, 453 F.3d at 1068. Segregating a child from the mainstream setting is allowed when “ ‘the handicapped child would not benefit from mainstreaming’ when ‘any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting,’ and when ‘the handicapped child is a disruptive force in the non-segregated setting.’ ” Id. (quoting Roncker, 700 F.2d at 1063).
Typically the students at CHDC are placed there because placement in a regular education setting was unsuccessful due to the student’s disability, and exacerbated by medical or behavior difficulties. Tr. at 5147 (Nye). Once a student is able to benefit from mainstream educational services, CHDC transitions the student into a mainstream setting. Tr. at 5150 (Nye). CHDC assesses each child individually as to whether it is feasible for him or her to receive education in a general education setting. Tr. at 5216 (Nye). At trial, the DOJ implied that because some students at CHDC came from a mainstreamed education setting before, those students should be in a mainstreamed education setting now. However, Defendant’s expert, Derek Nye, testified to precisely this type of misperception. Mr. Nye testified that, in studying the students at CHDC, there are no students at CHDC now that came from the general curriculum. Tr. at 5143 (Nye). About half of the students came from a residential setting where
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they received services in their home. The other half of students at CHDC came from completely self-contained classrooms with no interaction with non-disabled peers. Tr. at 5143 (Nye). Most of the students at CHDC came from residential settings or self-contained classrooms where they had little to no contact with non-disabled peers. Tr. at 5143 (Nye). This material fact flatly contradicts the DOJ’s representation that most students at CHDC moved to an educational environment that is much more restrictive than their prior placement.
Defendants’ educational expert, Dr. Gale, testified to the concept of least restrictive environment by stating:
So it's not in any way and should never be a thought that just because there's a community environment, that's automatically less restrictive. You really have to have a good understanding of the integrative nature of what CHDC is and look at planned, careful transitions. Tr. at 5771 (Gale). Contrary to the DOJ’s assertions at trial, Dr. Gale testified that he found no evidence of any provider that could meet the needs of any CHDC student. Tr. at 5757 (Gale). DOJ’s assertions show a complete disregard for the welfare of the CHDC residents, while completely ignoring the actual needs, progress, safety, and reduction in the level of restrictiveness being provided to these CHDC students. Additionally, students at CHDC have constant contact with their non-disabled peers through the CHDC volunteer program in which school-aged children volunteer in CHDC classrooms and interact with the students at CHDC. Tr. at 5232 (Nye). The children who volunteer help with classroom activities, physical activities, games, and other social outings involving CHDC students. Tr. at 5232 (Nye). During trial, the DOJ attempted to mischaracterize the intent of the IDEA by implying that the Act requires students to regularly interact with their non-disabled peers. The IDEA does
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not require that disabled students interact with non-disabled peers. The IDEA only requires that students receive a free and appropriate public education in the least restrictive environment. 20 U.S.C. § 1400 et seq. Students at CHDC are assessed by the IEP team annually to ensure that they are receiving services in the least restrictive setting for their needs. Tr. at 5151-52 (Nye). IEP teams have determined that CHDC is currently the least restrictive environment for the students served at the facility, and each student is receiving a free appropriate public education in that setting. Furthermore, parents of CHDC students wish for their children to stay at CHDC for the educational opportunities that they receive there. Tr. at 3270 (Catron). Defense witnesses, Melissa Catron, a registered nurse, and Michael Black, a federal employee, are parents of CHDC students. Both of these parents testified that their children R.C. and H.B, respectively, were in public schools before coming to CHDC and both of their children have made notable progress since their admission to CHDC. Tr. at 3262, 6833 (Catron, Black). Melissa Catron testified that her son R.C. was having serious behavior issues at the public school which included injuring other students.9 Tr. at 3263 (Catron). CHDC makes an assessment for R.C. every year on whether it is appropriate to transition him back into a public school. Tr. at 3271 (Catron). This decision is made by the team which includes Ms. Catron and a transition specialist. Tr. at 3271 (Catron). Melissa Catron testified that she attends R.C.’s IEP meetings annually and grants permission to CHDC to invite a transition specialist to attend the IEP. Tr. at. 3271 (Catron).
The Court heard testimony from Judy Buck, an education supervisor and Instructor II at CHDC, who attested to the fact that each year students are assessed for transition and that it is a
9 The following is an excerpt from testimony given by Melissa Catron regarding her son, R.C., and the reasons why a public school setting is not appropriate for her son. “At about age eight, he started becoming violent towards other children, other -- towards the teachers and the aides. And when he would have issues like that, they, basically, for the safety of the other children, of course, they would suspend him. I would have to come home from work and take care of him three and four days at a time, which made it very close to losing my job because of it.” Tr. at 3263 (Catron).
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goal at CHDC to transition students back into public schools whenever appropriate. Tr. at 6465 (Buck). Ms. Buck also testified that CHDC holds MAPS meetings when the team determines that the student is ready to transition back to public school. According to Ms. Buck, a MAPS meeting can be called at any time and by anyone, including the parent or even an outside agency. Tr. at 6479-80 (Buck), Def. Ex. 465. Marcia Harding also commented on the issue of least restrictive environment in stating that she would be exceeding her authority to step in to move a child to a less restrictive environment because she is not part of the IEP team. Tr. at 3059 (Harding). If the IEP team and the parent are in agreement on the least restrictive environment, then Ms. Harding cannot substitute her own opinion for that individual student. She also can not pre-determine what the IEP team outcome has to be or use sanctions to substitute her views for the team’s decision. Tr. at 3059 (Harding). Also worth noting, the Arkansas Department of Education did not find any deficiencies in the area of least restrictive environment. Tr. at 2399 (Thibadeau).
CHDC is evaluating its students annually to determine whether they are in the least restrictive environment. Among its efforts, CHDC holds annual IEP meetings which include the parent and the students’ teachers and other professionals as well as a transition specialist if permission is granted for them to attend. CHDC also facilitates Multiple Agency Planning (MAPS) meetings if a student is determined by the team to be ready for transition or if someone feels that the student could benefit from more transition services by multiple agencies. CHDC does regular evaluations for students, always with the goal of moving them back into the public schools. CHDC is in full compliance with the least restrictive environment requirement of the IDEA and is in full compliance with ADE rules and regulations for ensuring that its students are receiving their education in the least restrictive environment.
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L. CHDC IS IN FULL COMPLIANCE AND IS FULLY COOPERATING WITH THE ARKANSAS DEPARTMENT OF EDUCATION AND THE MONITORING REPORT REQUIREMENTS
The Arkansas Department of Education (“ADE”) conducts monitoring of school districts all over the state of Arkansas. Tr. 3036-38 (Harding). The purpose of the survey is to improve the quality of services that the school is providing and ensure that they are complying with the IDEA. Tr. at 5579 (Gale).
In an effort to produce evidentiary support that does not exist at CHDC, the DOJ mischaracterized the recent ADE monitoring of CHDC. In an attempt to do so, The DOJ called Marcia Harding, the ADE Associate Director, to testify to the recent ADE monitoring of CHDC. However, Ms. Harding testified that in her experience there have been instances where a school district did not comply with the IDEA and it did not result in a denial of FAPE. Tr. at 3014 (Harding). She also testified that the presence of a technical violation of some sort does not equate to students being denied FAPE. Children can still receive FAPE even though there is a technical violation present. Tr. at 3050 (Harding).
The DOJ attempted to argue at trial that since there were areas of possible noncompliance contained in the ADE monitoring report of CHDC, this was a clear indication that CHDC is not providing FAPE to its students. However, Ms. Harding, the DOJ’s own witness, testified that the monitoring ADE completed at CHDC was not on the basis of pattern or practice as it had been in the past, therefore, if even just one instance of noncompliance was present then there was a finding recorded in the monitoring report. Tr. at 3014 (Harding). Ms. Harding also testified that the ADE monitoring report does not reflect whether the finding of noncompliance was in one case or all cases at CHDC, so if there is a finding of noncompliance in just one case,
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then it must be cited as a finding in the monitoring report. Tr. at 3014 (Harding). Therefore, it cannot be concluded that the findings listed in the monitoring report are found program wide or systemically. Tr. at 3015 (Harding). In fact, Ms. Harding testified at trial that it is her opinion that it is difficult to stay in a continuous state of compliance. Tr. at 3034 (Harding). In fact, there were seven (7) school districts in Arkansas this year that were designated as high risk because of the degree to which they found those schools out of compliance. Tr. at 3034 (Harding). CHDC was not one of these seven (7).
Marcia Harding also testified that ADE monitors take notes as they go through the various sites and talk to people during monitoring, and the notes taken by monitors during monitoring are not intended to be final conclusions or established facts. Tr. at 3033 (Harding). She also testified that a note is not an official finding. Tr. at 3033 (Harding). It was further established by Defendants at trial that ADE monitors were given the report by Department of Justice witness Susan Thibadeau before they even began monitoring of CHDC. Tr. at 3033 (Harding). Therefore, it is unknown whether notes contained in the monitoring file refer to concepts developed by Ms. Thibadeau which surveyors were attempting to keep in mind rather than actual observations by the ADE monitors. Tr. at 3034 (Harding). Curiously, rather than calling one of the actual monitors who were responsible for this report and the notes contained in the ADE monitoring file, such as Janet Estes, to prove their case, the DOJ chose to call Marcia Harding, the director of education services, who, incidentally, played no direct part in the monitoring of CHDC.
The ADE report also frequently contained sections which contained the phrase “insufficient evidence.” Defendants’ expert, Derek Nye, testified that this term does not
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represent a deficiency, rather it means that there is not enough clear evidence to support a clear ruling. Tr. at 5166 (Nye).
On top of this cluster of testimony by Marcia Harding who was not even remotely familiar with the notes contained in the ADE monitoring file, the DOJ inappropriately elicited testimony from their expert Thibadeau on her evaluation of the notes made by ADE monitors during their review of CHDC where she guessed as to the meaning of those notes. Susan Thibadeau went on in an attempt to bolster her own testimony by citing the areas where the ADE report found deficiencies that corresponded with items contained in her report. However, she failed to cite a standard or define for the court how these items caused FAPE to be withheld from even one (1) student at CHDC. The Defendants are working closely with the ADE to correct any deficiencies noted in the 2010 monitoring report and Marcia Harding testified that CHDC has been extremely cooperative with ADE throughout this process. Tr. at 3036 (Harding). The ADE monitoring is an example of how the State is managing the educators within its borders and ensuring that they are complying with the IDEA. Most importantly, there has been no determination by the ADE that FAPE has not been provided at CHDC. Marcia Harding explicitly stated under oath that the determination of whether FAPE has been provided is a very large process and she was not requested to undertake that process. Tr. at 5176 (Nye).
CHDC submitted a corrective action plan to ADE, before their deadline for a corrective action plan, on July 14, 2010. Tr. at 3037 (Harding). Two of the eight areas of noncompliance were immediately resolved when the ADE accepted information provided by CHDC as sufficient and no further action has been necessary. For the other six areas, CHDC is working closely with ADE to provide them more specific evidence and details. Tr. at 3037 (Harding).
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The monitoring report was not a determination of whether FAPE was provided at CHDC, and the ADE monitoring report is a different type of review and is not intended to provide that type of information. The Court should not use the ADE monitoring report as a key to deciphering whether FAPE is provided at CHDC and it was inappropriate for Ms. Thibadeau to attempt to misuse the ADE monitoring report for that purpose.
M. THE OPINIONS OF SUSAN THIBADEAU WERE NOT RELIABLE AND SHOULD BE ACCORDED LITTLE OR NO WEIGHT BY THE COURT
As described in the Defendants’ Proposed Findings of Facts, DOJ’s education expert, Susan Thibadeau lacked factual foundation for her opinions, exhibited bias, relied on unreliable evidence, misrepresented the evidence, and failed to establish relevant standards and what constituted a substantial departure from accepted professional standards.
For example, Ms. Thibadeau formed an opinion that CHDC is not devoting sufficient time to teaching children to toilet. She testified at trial that this opinion was formed by only referring to the IEP for this information and that she did not look at the IPP. Tr. at 5675-76 (Gale). However, at CHDC, toileting is taught to students by the direct care staff in the living units and recorded on the IPP. Tr. at 5595 (Gale). Clearly, Ms. Thibadeau lacked any factual foundation for her opinions and did not partake in any due diligence to learn the inner workings of the facility in order to opine on the toileting program at CHDC.
Another example of Thibadeau’s lack of due diligence was clear when she opined on the Special Treatment Levels of Reinforcement System at CHDC and stated that it was inappropriate because it denied students their right to receive FAPE. Tr. at 6455 (Buck). In reality, a student is only held back from going to class when they are on the red level and are not prevented from receiving education services. Tr. at 6455 (Buck). In fact, the students who Thibadeau testified
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were part of the red level of the Special Treatment Levels of Reinforcement System in 2009 actually missed no class time in 2009. Tr. at 5180 (Nye).
Remaining examples exist of Thibadeau failing to exhibit due diligence appeared when she used the notes taken by ADE surveyors to bolster her own opinion without first discussing with the surveyors what they meant by the notes that appear in the ADE monitoring file. She further testified at trial during cross-examination that she would not want the notes that she took during her tour of CHDC to be taken as her final opinions. Tr. at 2402 (Thibadeau). Ms. Thibadeau also testified that some students at CHDC should be receiving their education in a less restrictive setting, however, she made no attempt to learn the student’s prior history of placement and why a less restrictive placement was not available as determined by the families and treating professionals of those children. Tr. at 2369 (Thibadeau).
Another example of inaccuracies in her testimony is when Susan Thibadeau testified that mechanical restraint on children is strictly prohibited in Maine, when in actuality, the State of Maine Regulations Governing the Licensing and Functioning of Intermediate Care Facilities with Mental Retardation 10-1444 CMR Chapter 18, Effective January 1, 2009 state otherwise. Tr. at 2285 (Thibadeau). Kevin Walsh, a psychologist specializing with children and adults with developmental disabilities testified that “Dr. Thibadeau, did not understand what the ICF/MR regulations permit relative to programmed use of restraints.” Tr. at 5855 (Walsh).
The DOJ also elicited testimony from Susan Thibadeau with regard to several students who Thibadeau thought could receive services in a less restrictive setting. Tr. at 2306-2314 (Thibadeau). However, Susan Thibadeau did not meet with the IEP teams or observe the IEP meetings of any of these students to determine why the team made the decision not to transfer those students. She merely looked at the IEP and made a determination by herself without doing
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any further inquiry into medical difficulties or behavioral issues that precipitated the student’s admission to CHDC in the first place. Thibadeau also failed to inquire into those student’s prior placements, which is an important factor in determining whether a student should transition back into public school.
Susan Thibadeau also reviewed documents from the Department of Justice, including the complaint and findings letter drafted by the DOJ, which biased her opinions of CHDC before she even made her initial visit to CHDC and before reaching her opinions. Tr. at 2361-62 (Thibadeau). Ms. Thibadeau also admitted at trial that she created invalid data by creating a disruption to the teachers during their class and relying on conclusions based on a disrupted environment. Tr. at 2369 (Thibadeau), 5685 (Gale).
Additionally, Susan Thibadeau did not select scientifically valid samples and, instead, she targeted the most difficult and weak cases where CHDC may have deviated from their normal practice. The few examples of alleged less than optimal educational practices are not representative of care and services at CHDC. Ms. Thibadeau opined that resident C.A. could function in a less restrictive setting with appropriate support but she also testified at trial that she did not evaluate C.A., does not know him and does not know what supports C.A. would need to function successfully in another educational setting. Tr. at 2392 (Thibadeau).
Finally, Susan Thibadeau testified at trial that she thinks that any amount of mechanical restraint is inappropriate. Tr. at 2403 (Thibadeau). However, she went on to testified that she does not know of any document or standard that disallows the use of mechanical restraint on children and could not reference even one standard that would support her opinion. Tr. at 2404 (Thibadeau).
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Ms. Thibadeau showed clear bias in her testimony and admitted to using absolutely no comparative data or benchmarks from other facilities or programs including school settings. Tr. at 2409 (Thibadeau). Unfortunately, the testimony offered by Susan Thibadeau only established her personal opinions, that lacked sound scientific analysis, objectivity and diligence necessary to assure reliable scientific results, and, therefore, it should be critically examined and given little or no weight by the Court.
N. CONCLUSION The DOJ has not been able to show even one (1) case to support its claims that Defendants are not complying with the IDEA and failing to provide FAPE to CHDC students. The Court should not assume that DOJ actually represents the interest of any student at CHDC. The parents and guardians of the students at CHDC have not claimed that the educational services are deficient. To the contrary, parents are part of the IEP team and help to make decisions regarding their child’s education. The DOJ was unable to present even one (1) parent or guardian of a student at CHDC who was alleging that FAPE is not provided to their child. The DOJ’s claim is based on the flawed, biased and idealistic opinions of Ms. Thibadeau who relied upon distortions of the deposition testimony of CHDC employees and unfounded assumptions as to the ADE monitoring report. The DOJ did not show, as a matter of law, that CHDC does not provide a free and appropriate public education to its students and has also failed to prove that even one child was inappropriately placed at CHDC. The DOJ also failed to show that CHDC was violating the IDEA by not participating in statewide assessments or requiring a regular education teacher to attend the IEP meetings. Finally, the DOJ also failed to show even one student who has not improved since their placement at CHDC, and, in fact, Defendant’s provided testimony by two
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parents of two different CHDC students who testified that their children have made substantial progress at CHDC and that they think that CHDC is the least restrictive placement for their child. CHDC is in compliance with the IDEA and is providing FAPE to its students in the least restrictive environment possible. The State of Arkansas has an active and effective Department of Education which works with CHDC to ensure compliance with the IDEA. It is not the job of the courts to usurp the power of the Department of Education or to dictate on matters of education methodology. The Arkansas Department of Education vigorously effectively continues to work with the school districts within the State, and with facilities like CHDC, of which the ADE monitoring report is proof. Therefore, the Court should enter judgment for the Defendants with regard to all claims involving the IDEA and least restrictive environment.
VII. COMMUNITY PLACEMENT Based on Arkansas’ total population and the incidence of developmental disabilities in
the general population, approximately 88,000 Arkansans have a developmental disability. Tr. at 5987 (Walsh). Of those 88,000 individuals, approximately 88 percent are likely mildly disabled, 8 percent moderately disabled, and the remaining, small minority, are profoundly and severely disabled. Tr. at 5988 (Walsh). Of the total, Arkansas provides services only to approximately 1% to 1.5% percent of its developmentally disabled citizens in its human development centers. Tr. at 5988 (Walsh). The remaining Arkansans with developmental disabilities are served in community-based programs. Tr. at 5988 (Walsh).
Although the Department of Justice is the Plaintiff in this matter, for evidentiary purposes, the Court cannot assume that it represents the interest of any CHDC resident or guardian. There was no such evidence at trial. The Department of Justice must prove all of the
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same elements of a claim that any other plaintiff is required to prove. U. S. v. Pennsylvania, 902 F. Supp. 565, 578 (W.D. Pa. 1995) aff’d. U.S. v. Ridge, 96 F.3d 1436 (3rd Cir. 1996).
O. PLAINTIFF FAILED TO PROVE THAT DEFENDANTS VIOLATE THE AMERICANS WITH DISABILITIES ACT.
Although the evidence in the instant matter is wanting, the United States Supreme Court’s decision in Olmstead v. Zimring is dispositive of Plaintiff’s allegations regarding discharge of CHDC residents to alternative community settings. Olmstead v. Zimring, 527 U.S. 581 (1999).10 In Olmstead, an action was filed on behalf of two women with mental retardation and co-morbid psychiatric disorders, known by their initials, L.C. and E.W. After being admitted voluntarily to the Georgia Regional Hospital in Atlanta in May 1992, L.C.’s schizophrenia was treated and stabilized. By May 1993, L.C. expressed a desire to leave the Georgia Regional Hospital and her treating professionals at the facility agreed that she could have her needs met in a state-supported community treatment program. However, L.C. remained in the Georgia Regional Hospital for nearly three more years. Plaintiff E.W. was voluntarily hospitalized at the Georgia Regional Hospital in February 1995 with a diagnosis of personality disorder. By 1996, E.W. expressed a desire to leave the facility and her therapist concluded that she could be treated in a community-based treatment program. E.W. was not discharged, however, after legal action had been brought. Both women argued that the state’s failure to discharge them to a community-based treatment program violated Title II of the Americans with Disabilities Act.
Finding that L.C.’s and E.W.’s continued treatment at the Georgia Regional Hospital violated the ADA, the Olmstead Court developed a three-prong test to determine when the ADA
10 By Plaintiff’s own admission, its ADA claim in the present case concerns only “residents institutionalized inside the CHDC.” United States v. State of Arkansas, 4:10CV327 JLH, Document 11 (filed 5/24/10).
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“require[s] placement of persons with mental disabilities in community settings rather than in institutions.” Id. at 587. The Court instructed that community placement is required when:
…the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. Interpreting the ADA and the Department of Justice’s regulations issued under it, Olmstead emphasized that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 602. The Court further stressed that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Id. at 601-02. “[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk.” Id. at 605. In fact, the Court recognized that “for [some] individuals, no placement outside the institution may ever be appropriate.” Id. (citing and quoting Brief for American Psychiatric Association et al. as Amici Curia at 22-23 (“Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times—perhaps in the short run, perhaps in the long run—for the risks and exposure of the less protective environment of community settings”); Brief for Voice of the Retarded et al. as Amici Curiae 11 (“Each disabled person is entitled to treatment in the most integrated setting possible for that person—recognizing that, on a case-by-case basis, that setting may be in an institution”); Youngberg v. Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J., concurring) (“For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know”).
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24. PLAINTIFF PRODUCED NO EVIDENCE THAT TREATING PROFESSIONALS AT CHDC HAVE RECOMMENDED DISCHARGE FOR A CHDC RESIDENT AND CHDC DID NOT DISCHARGE THAT RESIDENT
In conjunction with Plaintiff’s obligation to prove guardian consent, the Olmstead decision requires Plaintiff to demonstrate that treating professionals have recommended discharge for CHDC residents and that the Defendants’ failed to accommodate that recommendation. Olmstead, 527 U.S. 581, 587. Plaintiff probed CHDC’s records for nearly eight years before the trial in this matter. Yet, at trial Plaintiff offered no evidence that treating professionals at CHDC had determined that any CHDC resident should be discharged from CHDC to an alternative community setting and the guardian consented to the discharge, and then resident remained at CHDC.
CHDC’s treating professionals make professional judgments on a continuing basis while they are treating CHDC residents. Tr. at 6001(Walsh). Many of those treatment decisions, including treating professionals’ determination about the best setting for an individual, are noted in residents’ Individual Program Plans. Tr. at 6001 (Walsh). This system was designed to meet and exceed the U.S. Supreme Court’s guidance in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
In Porter v. Knickrehm, the plaintiff brought a § 1983 claim alleging that in the State of Arkansas the human development centers’ admission and discharge procedures violated constitutional equal protection and procedural due process rights. Porter v. Knickrehm, 457 F.3d 794 (8th Cir. 2006). The Eighth Circuit affirmed that “[p]rocedures under Arkansas statutes and under the internal policies of state human development center (HDC) for admission of mentally retarded persons to such centers satisfied procedural due process.” Id. at 799. The Court found
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that “[o]nly minimal protections were needed to meet procedural due process requirements for admitting mentally retarded individual to state human development center (HDC), where admission occurred voluntarily by authority of legal guardian.” Id. at 798 (citing Parham v. J.R., 442 U.S. 584,606 (1979)). In the instant matter, the Plaintiff seeks to circumvent state laws and regulations by imposing its preference for deinstitutionalization on the Defendants. This Court has already found that the procedures for admission and discharge at the State’s human development centers meet constitutional due process standards. Porter v. Knickrehm, 457 F.3d 794.
Olmstead does not require deinstitutionalization or the closure of residential facilities like CHDC. In Conner v. Branstad, a district court soundly reasoned
[I]f Congress had actually intended to require states to provide community based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so. Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993); See also U.S. v. Oregon, 782 F. Supp. 502, 514 (D.Or. 1991)(“[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the facility].”). In this matter, Plaintiff offered no evidence of differing professional opinions because its only expert on this issue, Ms. Richardson, is not and has never been a treating professional for the developmentally disabled. Even if her testimony is construed as questioning the decisions of CHDC’s treating professionals, Plaintiff cannot meet its burden of proof by presenting nothing more than (1) a difference of professional opinion as to which practices are appropriate or (2) expert testimony that another course of action would have been better. Youngberg, 457 U.S. at 321; Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998); Lelsz v. Kavanagh, 807 F.2d at 1243 (5th Cir. 1987); Society for Good Will to Retarded Children, Inc. v. Cuomo, 737
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F.2d at 1238, 1248 (2nd Cir. 1984); Doe v. Gaughan, 617 F. Supp. 1477, 1487 (D. Mass. 1985),

aff’d, 808 F.2d 871 (1st Cir. 1986); See also Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir.

1990) (noting that Youngberg prohibits courts from “weigh[ing] the decisions of the treating

professionals against the testimony of the [plaintiffs’] professionals to decide which of several

acceptable standards should apply”); U.S. v. Comm. of Pennsylvania, 902 F. Supp. 565, 584

(W.D. Pa. 1995) (“Optimal courses of treatment as determined by some expert, while laudable,

do not establish the minimal constitutional standard.”).

[T]he State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a communitybased program.

Olmstead, 527 U.S. at 602; Id. (quoting School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288

(1987) (“courts normally should defer to the reasonable medical judgments of public health

officials”); See also Hanson By and Through Hanson v. Clarke County, Iowa, 867 F.2d 1115 (8th

Cir. 1989).

Liability may be imposed only when [a] decision by [a] professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Youngberg, 457 U.S. at 323.

Defendants’ treating professionals are exercising professional judgment as to issues of

community placement. Tr. at 5999 (Walsh). Plaintiff has offered no evidence to the contrary.

The adequacy of professional judgment should not be based exclusively on what is documented

in a particular section of a resident’s Individualized Program Plan because what is noted in an

IPP is a reflection of all of the professional judgments that are continuously made for that

resident. Tr. at 6001 (Walsh). CHDC’s IPPs primarily are prepared to comply with federal

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regulations for ICF/MR facilities, which means they contain certain information in a specified format for multiple uses. Professional judgment exercised by treating professionals at CHDC is not something that is momentary and is not limited to an IPP meeting for a given resident. Tr. at 5999-6000 (Walsh). Professional judgment goes on all the time, while professionals work with a resident, often on a daily basis. Tr. at 6000 (Walsh). At the IPP meeting, treating professionals have already made professional judgments about a particular resident. Tr. at 6000 (Walsh). The IPP documents that those professional judgments have occurred. Tr. at 6000 (Walsh).
In advance of every IPP meeting, CHDC sends a booklet entitled “Arkansas ACS Waiver Guide.” Tr. at 6778 (A. Green), Def. Ex. 410. That booklet was developed by DDS in conjunction with waiver providers to thoroughly explain Medicaid waiver services in Arkansas. Tr. at 6778-79 (A. Green). CHDC also provides that booklet to parents and guardians at the time of a resident’s admission. Tr. at 6778-79 (A. Green). Guardians are also sent a document entitled, “Individual's Choice of Alternative Community Services Waiver or Intermediate Care Facility,” which solicits the guardian’s choice to pursue alternate community waivers or continued services at CHDC. Tr. at 6777-78 (A. Green), Def. Ex. 406.
At the IPP meeting, CHDC’s program specialists and other team members discuss waiver services with guardians, the interdisciplinary team reviews professional assessments, and the team and guardian discuss the individual’s needs, abilities, and where that individual or the guardian would like to receive services. Tr. at 849, 6778 (A. Green). That discussion is documented in the IPP. Tr. at 849 (A. Green).
At CHDC, this documentation is a strength in the IPP’s. Tr. at 4041 (Kastner). There is a specific statement in every IPP about whether Conway represents the least restrictive or most integrated setting. Tr. at 4041 (Kastner). That is not the typical case at other ICF’s. Tr. at 4041
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(Kastner). Most ICF’s do not have such documentation in their IPP’s. Tr. at 4041 (Kastner). There is no requirement in the ICF/MR regulations that any such documentation occur. Tr. at 4041 (Kastner). CHDC is actually ahead of most facilities in that they have an individualized statement in every IPP under a heading called "transitional plan." Tr. at 4041 (Kastner). That documentation is exceptional. Tr. at 4041 (Kastner). It exceeds ICF/MR standards and is much better than the process at other ICF/MR facilities. Tr. at 4041 (Kastner).
25. PLAINTIFF PRODUCED NO EVIDENCE THAT ANY CHDC RESIDENT OR GUARDIAN WANTS TO BE DISCHARGED FROM CHDC
The evidence in the instant matter is sharply distinguishable from Olmstead. In the instant matter, Plaintiff produced no evidence at trial that any CHDC resident, or guardian of a CHDC resident, wants to be discharged from CHDC. Unlike the Olmstead case, Plaintiff’s counsel in this matter has not been retained by any resident or guardian of a resident at CHDC. Any representations from Plaintiff’s counsel in this matter are just a reflection of the DOJ’s political agenda, and are not supported by actual evidence. Despite 30 days of testimony, Plaintiff’s counsel offered no evidence that any CHDC resident or guardian wants services in the community and has been denied those services.
In fact, the guardians and families of CHDC residents filed an Amicus Brief because, as they said, the Plaintiff “has displayed almost total indifference to the significant, legal role of families and guardians in the admissions of their disabled family members to residential care facilities and in assuring their health and safety, wherever they may reside, showing also lack of deference to the United States Supreme Court decision in Olmstead.” U.S. v. Arkansas, 4:09-cv033 JLH, Document 50 (filed 8/27/10), page 24.
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Although guardians of CHDC residents have no obligation to defend their decisions regarding the treatment and care of their loved ones, at trial, Defendants offered testimony from several CHDC guardians. Earline Stoddard is the mother of a resident at CHDC with the initials A.S. Tr. at 3229 (Stoddard). Ms. Stoddard has been a nurse since 1963. Tr. at 3230 (Stoddard). Her son has lived at CHDC since he was approximately 10 years old. Tr. at 3230 (Stoddard). A.S. has severe developmental disabilities that cause him to be non-verbal and suffer seizures. Tr. at 3231 (Stoddard). Ms. Stoddard visits her son often at CHDC. Tr. at 3232 (Stoddard). Ms. Stoddard testified that she is permitted to see her son at any time and she often comes to visit him without making an appointment or giving advance notice. Tr. at 3232 (Stoddard). Each time Ms. Stoddard visits CHDC, she is permitted to visit with her son at the cottage where he resides. Tr. at 3232 (Stoddard). In over 40 years of visits to CHDC, Ms. Stoddard, testified that she has never seen anything that would alarm her about the care that is provided to her son. Tr. at 3234 (Stoddard). She testified further that each time she visits CHDC there is always experienced staff who are also working in the house with new staff. Tr. at 3234 (Stoddard). Ms. Stoddard has never seen her son’s cottage staffed by only new staff. Tr. at 3234 (Stoddard). Other family members also visit A.S. and have never been restricted from seeing A.S. Tr. at 3234 (Stoddard).
A.S. participates in training programs at CHDC such as a walking program and other training on self care and independent living skills. Tr. at 3243 (Stoddard). If A.S. injures himself, CHDC notifies Ms. Stoddard and discusses the injuries with her. Tr. at 3236 (Stoddard). A.S. participates in community outings with CHDC. Tr. at 3246 (Stoddard). A.S. has gone several places off campus including shopping trips and to the county fair. Tr. at 3247 (Stoddard). A.S. was moved to Willow at one time during an illness and suffered from
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depression due to the move from his cottage. Tr. at 3247 (Stoddard). Once A.S. was moved back to his cottage, his mood was stabilized. Tr. at 3247 (Stoddard). Ms. Stoddard testified that A.S. would not handle a move out of CHDC. Tr. at 3248 (Stoddard). A.S. enjoys sounds as stimuli and enjoys being in his cottage more than in a quiet place such as Ms. Stoddard’s home. Tr. at 3260 (Stoddard). A.S. enjoys outings off campus only if he is with his caregivers with whom he is familiar. Tr. at 3259 (Stoddard).
Ms. Stoddard does not wish to seek placement for A.S. in a waiver-funded placement. Tr. at 3239 (Stoddard). She has investigated waiver-funded programs in the past such as group homes in northern Arkansas as well as Easter Seals in Arkansas. Tr. at 3239 (Stoddard). Both placements were inadequate to meet A.S.’s needs and Ms. Stoddard is pleased with the care that CHDC provides to A.S. Tr. at 3239 (Stoddard). Ms. Stoddard testified that she does not wish to pursue waiver options in the future. Tr. at 3240 (Stoddard).
Ms. Stoddard attends each annual IPP meeting and has made suggestions at A.S.’s IPP meeting that were received by the IDT team. Tr. at 3240, 3242 (Stoddard). The social worker initiates a conversation with Ms. Stoddard regarding community placement for A.S. at each IPP meeting. Tr. at 3243 (Stoddard). The social worker does not initiate the discussion regarding community placement and waiver apologetically, but rather it is discussed candidly where CHDC explains options to be considered. Tr. at 3244 (Stoddard). CHDC mails a packet to Ms. Stoddard containing information regarding waiver services before the IPP meeting each year. Tr. at 3244 (Stoddard).
Ms. Stoddard wishes to do her own thorough investigation into any potential placement for A.S. before that placement will be considered for A.S. Tr. at 3244 (Stoddard). To stay informed about waiver options, she makes phone calls, talks to nurses, students, and waiver
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providers. Tr. at 3245 (Stoddard). To date, no placement that Ms. Stoddard has investigated has been as satisfactory to her as CHDC. Tr. at 3245 (Stoddard).
Barry Landen is guardian for his 55-year-old brother, K.L., who lives at CHDC. Tr. at 6841, 6842 (Landon). Mr. Landen is a filmmaker with a bachelor’s degree in cinema studies. Tr. at 6841 (Landon). His brother, K.L., is non-verbal, severely mentally retarded, blind, and epileptic. Tr. at 6842 (Landon). K.L. has limited mobility. Tr. at 6842 (Landon). As a child, K.L. lived in a small group home in Syracuse, New York, that failed to provide him with proper care and supervision which resulted in K.L. getting hit by a car, resulting in several broken bones and epilepsy. Tr. at 6843 (Landon). Mr. Landen’s parents looked at facilities across the country and decided to move K.L from New York and placed him at CHDC. Tr. at 6843 (Landon).
Mr. Landen visits his brother every three weeks and takes him to his home for visits over the weekend. Tr. at 6844 (Landon). Mr. Landen knows all of K.L.’s cottage roommates. Tr. at 6846 (Landon). K.L. is extraordinarily fragile with a lack of balance and no concept of danger, but in the 40-plus years that K.L. has lived at CHDC he has not had any significant injuries. Tr. at 6851 (Landon). CHDC has at least a 40-year track record of taking excellent care of K.L. Tr. at 6851, 6852 (Landon).
Mr. Landen wants K.L. to live with the people at CHDC because he is familiar with them and trusts them. Tr. at 6853 (Landon). K.L. has three jobs on campus shredding paper, folding towels and crushing cans. Tr. at 6847, 6848 (Landon). The interdisciplinary team updates Mr. Landen on how K.L. is progressing in his work. Tr. at 6847, 6848 (Landon). Mr. Landen has been to a lot of facilities throughout the years and notices a difference in that CHDC is homelike and comfortable whereas others are not. Tr. at 6846 (Landon). Mr. Landen has also had in-
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depth experience with group homes through various projects that he has produced as the director of operations at CNN. Tr. at 6850 (Landon).
Mr. Landen attends all of K.L.’s IPP meetings. Tr. at 6847 (Landon). Waiver options are brought up by Shelbie Huff, K.L.’s social worker, at every IPP meeting. Tr. at 6849, 6850 (Landon). Mr. Landen expresses to the interdisciplinary team that he is not interested in waiver options at each IPP meeting. Tr. at 6850 (Landon).
Michael Black is a guardian and parent of a school-aged child at CHDC with the initials H.B. Tr. at 6822 (Black). Mr. Black is a federal employee and postal worker. Tr. at 6837 (Black). At the time of trial, H.B. was 14 years old. Tr. at 6823, 6824 (Black). H.B. has a cognitive functioning of a two- year-old child and uses a wheelchair. Tr. at 6823, 6824 (Black). He is somewhat ambulatory and is somewhat verbal, but has a very small vocabulary. Tr. at 6822, 6823 (Black). He is severely mentally retarded with cerebral palsy and has a hydrocephalus shunt. Tr. at 6823 (Black).
Prior to seeking H.B.’s admission to CHDC, Mr. Black used waiver-funded programs for H.B., including Easter Seals. Tr. at 6825 (Black). Mr. Black testified that the Easter Seals facility at which H.B. received services was a short term rehabilitation facility, not a long term care facility. Tr. at 6825 (Black). After four years of working with H.B., Easter Seals discharged him because they decided that his rehabilitation had stopped and he would not progress any further. Tr. at 6825 (Black).
Since H.B. has been at CHDC, his aggression and self injurious behavior has reduced from occurring once per week to once every 4 to 5 months. Tr. at 6827 (Black). CHDC has worked extensively on H.B.s aggression and self injury, which has resulted in a decrease in the
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number of incidents. Tr. at 6827 (Black). H.B. has required no mechanical restraint in the past year. Tr. at 6827 (Black).
H.B. lives in a residence that is arranged in a home-like setting with separate sleeping, eating and living quarters. Tr. at 6828 (Black). Mr. Black makes regular visits to CHDC to see H.B. Tr. at 6827. H.B. often participates in outings off-campus with his father and the rest of their family. Tr. at 6828 (Black). H.B. also participates in off-campus outings with campus staff such as fishing trips, the state fair and the movies. Tr. at 6828 (Black). On cross-examination, Plaintiff’s counsel disingenuously asked Mr. Black if EPSDT services were ever offered to his son. Tr. at 6838 (Black). EPSDT services are only available for children with psychiatric illness. Tr. at 6838 (Black). H.B. does not have any psychiatric diagnosis. Tr. at 6823 (Black). Mr. Black testified that he believes CHDC has adequate staffing to provide H.B. with the level of service and attention that he needs. Tr. at 6831 (Black). CHDC is familiar with H.B.’s condition and his hydrocephalus shunt. Tr. at 6831 (Black). CHDC is also within close proximity to Arkansas Children’s Hospital. Tr. at 6831, 6834 (Black).
Mr. Black also attends H.B.’s annual IPP meetings. Tr. at 6829 (Black). Waiver options are discussed regularly with Mr. Black at the IPP meeting for H.B. Tr. at 6830 (Black). Mr. Black has also independently explored waiver options for H.B. Tr. at 6830, 6831 (Black). Mr. Black has concluded that waiver-funded programs do not have adequate staffing and are not familiar with H.B.’s medical condition and requirements with regard to his hydrocephalus shunt. Tr. at 6831 (Black).
Mr. Black intends for H.B. to transition eventually into a small group home once he gets older and becomes more mature, but he opposes H.B.’s discharge from CHDC at this time. Tr. at 6832 (Black). H.B.’s interdisciplinary team is aware of the goal to transition H.B. once he
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becomes a young adult. Tr. at 6832 (Black). H.B. has made immense advancements at CHDC due to the capabilities of the staff. Tr. at 6833 (Black). Mr. Black is pleased with the services that H.B. receives at CHDC and does not want to move him to anywhere else, including his family’s home. Tr. at 6833, 6834 (Black).
Larry Taylor is the guardian for his sister, C.T., who lives at CHDC. Tr. at 5049 (Taylor). Mr. Taylor is a mortgage banker by profession. Tr. at 5049 (Taylor). He became guardian for his sister after his mother and father died. Tr. at 5054 (Taylor). Larry Taylor’s mother was a cofounder of the Holy Souls School for Exceptional Children, which is now operating as The Allen School. Tr. at 5051 (Taylor). C.T. attended that school for as long as it could provide stimulus and active treatment. Tr. at 5052 (Taylor). C.T. is currently 58 years old and functions at a level of a two-year-old. Tr. at 5050 (Taylor). She has lived at CHDC since February 1966, when she was 14 years old. Tr. at 5050 (Taylor). C.T. has grown and prospered since she has lived at CHDC. Tr. at 5053 (Taylor). Her family explored placements for C.T. all over the country and visited those placements before they chose CHDC for C.T. Tr. at 5053 (Taylor). Dr. Parmley is C.T.’s primary care physician and C.T. receives psychiatric care from Dr. Callahan. Tr. at 5064 (Taylor). Dr. Parmley and Dr. Callahan consult with each other to provide C.T. with general medical and psychiatric care. Tr. at 5064 (Taylor). C.T. has severe mental retardation and severe mental illness that manifests itself in obsessive-compulsive disorder. Tr. at 5050 (Taylor). She is verbal and able to express her wishes. Tr. at 5051 (Taylor).
Mr. Taylor was previously the vice president of the parents’ association at CHDC and now serves as the president of the statewide parents’ association, Family and Friends of Care Facility Residents, which serves as an umbrella organization for family support groups for all of Arkansas’ human development centers. Tr. at 5055-56 (Taylor). The Family and Friends of Care
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Facility Residents is a statewide organization which raised funds to help draft and file the Amicus Brief in the case at hand. Tr. at 5057 (Taylor). There are members of Family and Friends of Care Facility Residents who have loved ones who are on waiver, but still advocate to keep the human development centers as a resource in the continuum of care for their loved ones. Tr. at 5058 (Taylor).
Mr. Taylor visits with his sister at least once a week at CHDC and is very involved with her treatment and care. Tr. at 5054, 5055 (Taylor). Mr. Taylor is able to visit C.T. any time during the day or evening and may roam the grounds at CHDC with his sister anytime he likes. Tr. at 5059 (Taylor). C.T. visits her brother at his home and oftentimes asks to be returned to CHDC, which she calls her “home.” Tr. at 5059 (Taylor). Mr. Taylor testified that it is important to him that staff at CHDC are awake and provide care 24 hours a day. Tr. at 5059 (Taylor). He noted that CHDC staff do not sleep at night, which is not necessarily the case in community settings. Tr. at 5059 (Taylor).
Mr. Taylor is involved in C.T.’s IPP meeting and provides assistance to the IPP team to form C.T.’s program plan. Tr. at 5062 (Taylor). C.T.’s IPP was admitted as Defendants’ Exhibit LT1 which contains a quote from Larry Taylor that he expressed during C.T.’s IPP meeting which was “CHDC may not be perfect, but it is perfect for C.” Tr. at 5065 (Taylor). Alternative placement for C.T. is discussed with Larry Taylor at every IPP meeting. Tr. at 5065 (Taylor). Mr. Taylor has a long standing relationship with Sandy Moix who works as C.T.’s social worker at CHDC. Tr. at 5062 (Taylor). Mr. Taylor has been approached by CHDC staff in the past with regard to alternative placements that CHDC proposed that Mr. Taylor consider for C.T. Tr. at 5069 (Taylor). Mr. Taylor has been impressed with some of the waiver-funded providers that
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appeared at the CHDC provider fair, but not impressed so much that he would consider moving his sister from CHDC. Tr. at 5065 (Taylor).
Mr. Taylor is very knowledgeable about waiver-funded programs. Tr. at 5059 (Taylor). He has investigated several waiver funded programs and has not found one that would meet his sister’s needs as well as they are met at CHDC. Tr. at 5060 (Taylor). He has not seen anything while touring waiver-funded programs and residential settings that would give him pause or cause him to rip C.T. from her home of so many years. Tr. at 5061 (Taylor). Even though Mr. Taylor is extremely knowledgeable about developments and current services available through waiver funded programs, he opposes his sister’s discharge from CHDC. Tr. at 5059 (Taylor).
Melissa Catron is a mother of a school-aged resident at CHDC. Tr. at 3260 (Catron). Ms. Catron is a registered nurse with an associate’s degree in nursing. Tr. at 3261 (Catron). Her son, R., has lived at CHDC for four years. Tr. at 3262 (Catron). When R. was living at home, Ms. Catron was required to transport him to all medical appointments. Tr. at 3265 (Catron). R. would react violently in the car and at the doctor’s offices, requiring restraint. Tr. at 3265 (Catron). Ms. Catron testified that R. reacts very badly to change of any kind. Tr. at 3265.
Before R. was admitted to CHDC, he attended school at the community school in Herber Springs, Cleburne County, which is a public school for handicapped children. Tr. at 3262 (Catron). R.’s education in public schools in Cabot, Arkansas was unsuccessful. Tr. at 3262 (Catron). When attending public schools, R. was always educated with other disabled peers. Tr. at 3263 (Catron). R. was never integrated into a regular classroom and does not tolerate interaction with non- disabled children well. Tr. at 3263 (Catron). It is better for R. to be educated with other disabled peers rather than with non-disabled peers. Tr. at 3264 (Catron). R.
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is educated in special education classes at CHDC to Ms. Catron’s satisfaction. Tr. at 3269 (Catron).
R. was on several psychotropic medications before he was admitted to CHDC, including Risperdal, Propranolol, and Cogentin. Tr. at 3265 (Catron). CHDC has managed R.’s medications since his admission. Tr. at 3265 (Catron). CHDC attempted to reduce R.’s medication at one time, which was unsuccessful, so his medication dosage was increased again. Tr. at 3265 (Catron). Prior to reducing R.’s psychotropic medication dosage, his physicians discussed the recommendation to reduce medication with Ms. Catron at R.’s IPP meeting. Tr. at 3267 (Catron). With Ms. Catron’s agreement, R.’s dosage of Risperdal was reduced by half, but within a few days the numbers of incidents of R.’s self-abuse, attacking other people, and agitation increased considerably. Tr. at 3267 (Catron). After these incidents, R.’s dosages were increased to their previous levels and R. has been stable. Tr. at 3267 (Catron). If R. has medical emergencies at CHDC, CHDC has handled them appropriately. Tr. at 3274 (Catron).
R. does have a Safety Plan and a Strategy Plan. Tr. at 3267 (Catron). As part of R.’s safety plan, CHDC may use a papoose board with R. as a last resort. Tr. at 3273 (Catron). R.’s outbursts are less frequent at CHDC than when he was living at home. Tr. at 3274 (Catron). Ms. Catron has never disagreed with CHDC about how professionals and staff deal with R.’s behavior. Tr. at 3268 (Catron). If R. injures himself or someone else at CHDC, Ms. Catron is always notified by CHDC. Tr. at 3269 (Catron).
Ms. Catron makes regular visits to CHDC to see her son. Tr. at 3269 (Catron). She is not restricted from seeing R. and can visit him at any time she wants and as often as she wants. Tr. at 3270 (Catron). R. also participates in community outings with staff and other residents from CHDC such as eating out, shopping and basketball games. Tr. at 3273 (Catron).
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Melissa Catron attends R.’s IPP meeting each year where they discuss community placement of R. Tr. at 3271 (Catron). During the IPP meeting, CHDC initiates the conversation with Ms. Catron regarding R. moving out of CHDC into a waiver-funded program, group home, or in home respite care. Tr. at 3272 (Catron). Ms. Catron testified that the topic of community placement for R. is not brought up apologetically by CHDC, but rather is a genuine discussion. Tr. at 3272 (Catron).
Before admitting R. to CHDC, Ms. Catron spent several years with the waiver program. Tr. at 3268 (Catron). She had multiple experiences with direct care staff that were provided through the waiver program. Tr. at 3268 (Catron). Often those workers would not show up in the morning when they were scheduled to come. Tr. at 3268 (Catron). Other aides provided by the waiver would come as scheduled, but were not sufficiently trained to work with a severely disabled child. Tr. at 3268 (Catron). One aide provided through the waiver was sufficiently trained to work with R., but when the aid was not there R. was so violent at home that it was impossible for Ms. Catron and her husband to properly control R. Tr. at 3268 (Catron). Prior to R.’s admission to CHDC, the state informed Ms. Catron of residential settings that serve individuals with similar challenges that R. presents, including full time residential care. Tr. at 3275 (Catron). Ms. Catron testified that the state indicated to her that R. should be placed in a residential facility like CHDC only if it was absolutely necessary. Tr. at 3275 (Catron).
Ms. Catron does not believe that a group home is appropriate for R. at this time. Tr. at 3270 (Catron). She believes that R. needs more services than he could get if he was living in a group home or other community setting. Tr. at 3276 (Catron). Ms. Catron does not wish to pursue any other waiver options for R. at this time. Tr. at 3270 (Catron). Among other reasons, Ms. Catron testified that CHDC is a better placement for R. than any other community option
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due to his difficulties with transition and violent outbursts. Tr. at 3272 (Catron). Ms. Catron believes that CHDC is the best place for R. at this time because his classes and physicians are on campus. Tr. at 3270 (Catron). R. handles the transition from classes and locations on the campus much better than he would in the community. Tr. at 3270 (Catron). If R. has to see the psychiatrists at CHDC and is having a violent episode, CHDC will take R. back to his residence and try again later in the day or the following day, which is not an option for Ms. Catron if R. was living at home. Tr. at 3280 (Catron). Ms. Catron opposes her son’s discharge from CHDC. Tr. at 3270 (Catron).
Plaintiff did not offer any testimony, or other evidence, from even one CHDC guardian. That glaring dearth of evidence necessarily means that Plaintiff failed to meet its burden of proof. Even Plaintiff’s only expert on this issue, Ms. Richardson, testified that she did not believe that CHDC residents should be forced to leave CHDC without the consent of their guardian. Tr. at 637-38 (Richardson).
The only CHDC guardians who testified at trial were called by Defendants and were under no obligation to testify11. CHDC guardians have no obligation to justify their decisions to have their loved ones receive services at CHDC. Plaintiff has never alleged that any CHDC guardian is incompetent or otherwise incapable of making decisions for a CHDC resident. Nevertheless, in full public view, CHDC guardians explained their deeply personal reasons for their respective decisions to have their loved ones receive services at CHDC in order to demonstrate that they have actively made those difficult decisions.
11 Defendant’s note that Plaintiff subpoenaed Mr. Alan Fortney to testify in their case in chief. Mr. Fortney testified that he was not the guardian for his step-daughter, and he testified strongly in favor of the care and services that his step-daughter receives at CHDC. Tr. at 1484-1503 (Fortney).
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P. PLAITIFF’S ONLY EXPERT ON THE ISSUE OF COMMUNITY PLACEMENT, MS. RICHARDSON, OFFERED UNRELIABLE OPINIONS AND NO EVIDENCE TO SUPPORT PLAINTIFF’S BURDEN OF PROOF
Plaintiff’s expert, Ms. Richardson, does not hold a license or degree in any of the areas that CHDC’s treating professionals practice. Tr. at 636, 5983 (Richardson, Walsh). Ms. Richardson is a licensed attorney. Tr. at 519 (Richardson), Pl. Ex. 210-1. She also has a master’s degree in special education, but has not taught for over 20 years. Tr. at 517-18 (Richardson). She does not have a degree in social work or any other clinical specialty that would allow her to second-guess the professional judgment of CHDC’s treating professionals. Tr. at 518 (Richardson). Although she frequently referred to “the profession” throughout her testimony, Ms. Richardson was never able to articulate to what “profession” she was referring. Tr. at 679, 688, 689, 716, 737 (Richardson).
26. MS. RICHARDSON APPLIED NO STANDARDS IN HER EVALUATION OF CHDC
All of Ms. Richardson’s opinions about CHDC should be discounted or completely ignored by the Court. She used no standards to assess CHDC, employed no rational methodology, and revealed herself to be nothing more than an advocate with a ideological agenda. She has no relevant clinical training and is not a treating professional. Tr. at 5983 (Walsh). Her opinions about transition services at CHDC were, at best, nothing more than speculation. Tr. at 5984 (Walsh). Ms. Richardson applied no professionally accepted standards to her evaluation of CHDC and she made no attempt to apply minimally accepted professional standards to her evaluation of services at CHDC. Tr. at 675-76 (Richardson). To the contrary, Ms. Richardson’s consultation was specifically aimed at her goal of moving people out of CHDC to the community. Tr. at 661-62 (Richardson). Rather than evaluating CHDC objectively, Ms.
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Richardson testified that “[her] role was to support community placement” Tr. at 661 (Richardson). Ms. Richardson also described the purpose of her consultation as follows: “I was looking at was the question of whether there were people at Conway who could be served in the community in a less restrictive, more integrated environment.” Tr. at 662 (Richardson).
Ms. Richardson testified that she was “puzzled” by the phrase “standard of care”. Tr. at 688 (Richardson). She also testified that she does not think the standard of care is defined by the majority of professionals because the majority is always going to be behind the curve. Tr. at 68889 (Richardson). She testified that the standard of care is derived “from people who have working at the forefront of the field” and described it as what “most folks who are writing about the profession and being called upon to develop new aspects of it -- what are they thinking.” Tr. at 688 (Richardson). Ms. Richardson testified that she also considers the relevant standard of care to be “where the profession is headed” a “the standard that is beginning to be embraced by states as people are setting new direction.” Tr. at 689 (Richardson).
Ms. Richardson admitted that her definition of the standard of care is not accepted by a majority of any professionals. Tr. at 688-89 (Richardson). She testified that she compared services at CHDC to standards “which seem sensible.” Tr. at 528, 674-75 (Richardson). She claimed that she was unable to apply any professional standards in her evaluation of CHDC because no one has to live in an “institution [sic] facility.” Tr. at 676 (Richardson). Contradicting herself, Ms. Richardson added, “the standard is that nobody [has to live in an institutional facility]” Tr. at 676 (Richardson). Although they were described vaguely, Ms. Richardson was clear that the standards she applied were “above the mean.” Tr. at 690 (Richardson).
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In an effort to present a veil of legitimacy with her personal agenda, Ms. Richardson also testified that she attempted to interpret language that she selectively reviewed from the DDS and CHDC mission statements and then used them as her standard. Tr. at 526, 675-76 (Richardson). However, she admitted that she knew the mission statements were not written or intended to be an articulation of any professional standard. Tr. at 675, 676, 689 (Richardson). She also admitted that the mission statements are merely aspirational goals that DDS and CHDC work toward. Tr. at 676 (Richardson). Although she claimed that she used the DDS and CHDC mission statements as standards, Ms. Richardson admitted that at the time she prepared her report, she failed to read CHDC’s entire mission statement and missed specific statements in CHDC’s mission statement that CHDC is "committed to utilize the least restrictive alternatives to meet the developmental needs of individuals and foster a return to community living." Tr. at 532, 720 (Richardson). Ms. Richardson failure to read CHDC’s entire mission and her de facto adoption of CHDC and DDS’s mission statements as “standards” was part of a feeble attempt to disguise her inferior work and personal agenda. Tr. at 523, 720 (Richardson).
Ms. Richardson’s distorted concept of standards allowed her to go into CHDC and conclude that some individuals could be discharged to community settings, without consideration of how those individuals would fare in a community setting, what their needs would be, or even whether those individuals’ guardians want an alternative setting. Tr. at 5986 (Walsh). She admitted that her review of CHDC and opinions were not mainstream and admitted that she did not necessarily rely on facts or data to reach her conclusions. Tr. at 679-81 (Richardson). Although she implied that she was the embodiment of a standard, Ms. Richardson has published nothing for at least the past 10 years and none of her work has been subjected to peer-review. Tr. at 690, 677 (Richardson); See also Pl. Ex. 210. Ms. Richardson relied on no case law, including
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the Olmstead decision in assessing services at CHDC. Tr. at 678-79 (Richardson). She also testified that her evaluation of services need not be based on the scientific method, but rather on broadly discerning the truth, which Ms. Richardson claims “depends on the person.” Tr. at 68081 (Richardson).
Ms. Richardson admitted that CMS regulations provide the relevant standards of care for discharge and transitions. She acknowledged that CMS regulates admission and discharge practices at ICF/MR facilities, including CHDC. Tr. at 685 (Richardson). Consistent with the Olmstead standard, ICF/MR regulations permit transfer or discharge only when a facility cannot meet an individual's needs, the individual no longer requires an active treatment program in an ICF/MR setting, the individual or guardian chooses to reside elsewhere, or when a determination is made that another level of service or living situation, either internal or external, would be more beneficial, or for any other good cause, including any reason that is in the best interest of the individual. Tr. at 686 (Richardson). CMS regulations specifically delineate when discharge or transfer of a CHDC resident is required. Tr. at 686 (Richardson). Ms. Richardson made no attempt to apply CMS regulations in her review of discharge and transition practices at CHDC. Tr. at 686 (Richardson). She also admitted that neither the ICF/MR regulations nor any other professional standards require a formal transition plan, as she proposed in her direct testimony. Tr. at 687 (Richardson).
27. MS. RICHARDSON SUBJECTIVELY SELECTED HER SAMPLE Ms. Richardson chose the number of CHDC residents that she reviewed because it was “a number [she] thought [she] could do.” Tr. at 658 (Richardson). She admitted that the CHDC residents she chose to review were not randomly selected. Tr. at 658 (Richardson). Ms.
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Richardson did not select CHDC residents for her sample based on any objective criteria and she did not attempt to draw a representative sample of CHDC residents for her analysis. Tr. at 5992 (Walsh). She agreed that her sample was biased in favor of higher functioning CHDC residents and was not representative of the population at CHDC. Tr. at 703 (Richardson). She admitted that forty-five percent of the individuals she reviewed at CHDC were pre-determined to be among the most high-functioning CHDC residents. Tr. at 703, 5992 (Richardson, Walsh). Ms. Richardson’s review of CHDC included a bad sample and variables that did not correlate to her conclusions. Tr. at 5992 (Walsh). Any conclusions drawn from Ms. Richardson’s sample cannot be extrapolated to the entire CHDC population.
28. MS. RICHARDSON’S FLAWED METHODOLOGY Ms. Richardson had no rational basis for her opinions or conclusions regarding services at CHDC. Tr. at 5994 (Walsh). She used absolutely no clinical process in her evaluation of CHDC. Tr. at 5984 (Walsh). Ms. Richardson admitted that she did not review the quality of any services at CHDC and she made no effort to compare services at CHDC to services offered by community- based providers in Arkansas. Tr. at 661, 679 (Richardson). When questioned about her flawed methodology, Ms. Richardson testified that her work in this case was only an overview and was not an intensive review. Tr. at 694 (Richardson). Despite claiming that she toured CHDC for nine days during 2009, Ms. Richardson attended only two IPP meetings. Tr. at 695 (Richardson). She did not look at any clinical records during her review of CHDC, such as physical therapy evaluations, occupational therapy evaluations, speech evaluations, psychological testing, behavior reports, or behavioral interventions. Tr. at 659 (Richardson). She only looked at residents’ clinical records to the
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extent that they were incorporated into resident’s Individual Program Plans, so she could not possibly have assessed CHDC’s treating professionals’ exercise of professional judgment accurately. Tr. at 659 (Richardson). She also did not interview any CHDC guardians as part of her review. Tr. at 694-95 (Richardson).
Ms. Richardson’s brief tour of CHDC, limited review of records, and incidental meeting of some CHDC residents, did not afford her enough information to conclude that any CHDC resident could be classified as high, medium, or low priority for community placement. Tr. at 5983 (Walsh). For the limited observations that she made, Ms. Richardson did not use standard naturalistic observation practices and she admitted as much. Tr. at 5994 (Walsh). With utter disregard for CHDC residents, Ms Richardson chose to inject herself into situations she claimed to be observing. Tr. at 5994 (Walsh). Interacting with someone is necessarily different than observing someone. Tr. at 5995 (Walsh). If a CHDC resident is interacting with a stranger, such as Ms. Richardson, even if Ms. Richardson is somehow able to simultaneously withdraw and observe and interact, as an observer she is not getting an accurate sample of that individual’s typical behavior. Tr. at 5995 (Walsh). To do a proper evaluation of transition services at CHDC, one would need to look at the resident as a whole, in the same way that the interdisciplinary team does, including treatment history, functional skills, and the nature of the place to which he or she would be transitioning. Tr. at 5983, 6764-65 (Walsh, A. Green). Without an in-depth review of client files and lengthy naturalistic observations, Ms. Richardson should not have even been making recommendations about program plans, transition services, or community placements. Tr. at 5994 (Walsh).
Ms. Richardson occasionally does part-time work in Tennessee pursuant to a consent decree. Tr. at 738 (Richardson). According to Ms. Richardson, when she does her review of
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services in Tennessee, she interviews a resident for hours. Tr. at 738 (Richardson). She then interviews the resident’s treating professionals, including physicians, and the resident’s guardians and only then does she make a recommendation about whether she believes the resident should continue to reside at the facility or consider transferring to a community residential setting. Tr. at 738-39 (Richardson). Ms. Richardson has never done an analysis of her work in Tennessee to determine if it is statistically valid, statistically reliable, or statistically significant, but she did not even attempt to apply that process in reviewing services at CHDC. Tr. at 677, 738-39 (Richardson).
Ms. Richardson made no attempt to compare CHDC to similar facilities. Tr. at 668 (Richardson). She did not know the rate of admission at CHDC and did not know the rate of admission to any other large, publicly operated ICF/MR facility. Tr. at 669 (Richardson). She did not rely on the CMS data compilation, OSCAR (“online survey certification and reporting”), although she suspected OSCAR contained relevant data for purposes of comparing CHDC to other facilities. Tr. at 668 (Richardson).
On direct examination, Ms. Richardson claimed that her opinions were informed by a study by the University of Minnesota, but then on cross-examination she repeatedly insisted that she offered no such testimony. Cf. Tr. at 596-597, 668 (Richardson). Ms. Richardson did not know that the University of Minnesota study, which she selectively cited in her direct examination, actually uses data from OSCAR to compare data and outcomes across states. Tr. at 668 (Richardson). The University of Minnesota study cited by Ms. Richardson in her direct examination describes the rates of admission to large publicly operated ICF/MR’s nationwide have increased in recent years. Tr. at 668-669 (Richardson). When Defendants’ counsel pointed Ms. Richardson to that statistic, she testified that she had no opinion about why the rates of
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admission to large publicly operated ICF/MR’s have increased in recent years. Tr. at 669. Exposing her personal ideological agenda, she refused to consider the possibility that the rates of admission to large publicly operated ICF/MR’s nationwide have increased in recent years because the resources in community programs are inadequate to meet the need of some people with developmental disabilities. Tr. at 669 (Richardson).
29. MS. RICHARDSON’S INACCURATE AND UNINFORMED RANKING OF CHDC RESIDENTS
At the back of Ms. Richardson’s report, she included a chart, but she never explained how she selected information to include in her chart or why she excluded other information. Tr. at 5984 (Walsh). Similarly, Ms. Richardson rated CHDC residents in her sample along a high, medium, low continuum, but she never explained what that continuum was or what criteria she used to place residents at various places on that continuum. Tr. at 5990 (Walsh). Similarly, she never explained how she reached any of her conclusions about specific CHDC residents. Tr. at 5985 (Walsh). In some cases, Ms. Richardson rated CHDC residents “high” in her category system despite them having extremely complicated physical and mental impairments, being profoundly disabled, and requiring 24 hour care. Tr. at 5985 (Walsh). Making a judgment that any particular person is a high candidate for community placement cannot be done, particularly without knowing whether there are community settings that can meet the actual needs of the individual. Tr. at 5983 (Walsh). Ms. Richardson never offered any explanation for how she reached her decision or what criteria she even considered. Tr. at 5985 (Walsh). Ms. Richardson’s entire analysis of CHDC was subjective. Tr. at 706, 5985 (Richardson, Walsh). She did not even meet with four of the CHDC residents she rated as high for consideration of community placement. Tr. at 716 (Richardson).
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Ms. Richardson’s ratings of CHDC residents are completely meaningless. Tr. at 5992 (Walsh). At trial, she was unable to explain why she ranked CHDC residents high, medium, or low, without referring to the particular resident’s records because she used no objective criteria in her review of CHDC. See e.g. Tr. at 704, 705, 706 (Richardson). Her assignment of high, medium, and low designations appeared to be random. Tr. at 5991 (Walsh). Ms. Richardson never explained how she concluded that half of the people in her review should have “upgraded” plans and what purpose it would serve. Tr. at 5984 (Walsh). Ms. Richardson rankings made no distinction in her ratings among CHDC residents who were ambulatory, non-mobile, medically fragile, or self-injurious. Tr. at 5991 (Walsh).
For several CHDC residents, Ms. Richardson misrepresented the nature of their support and service needs. Tr. at 6766 (A. Green). For example, M.F. she indicated a diagnosis of spina bifida, hydrocephaly, renal failure, and g-tube. Tr. at 6765 (A. Green). M.F. does have a g-tube, but he does not have a diagnosis of renal failure and he does not have a diagnosis of spina bifida. Tr. at 6765 (A. Green). In her key issues for some people, Ms. Richardson indicated that some residents were medically fragile, needed 24-hour nursing care, and they had reflux precautions. Tr. at 6765 (A. Green). Those are also things that M.F. has, but they were not identified by Ms. Richardson in her description of M.F. Tr. at 6765 (A. Green).
For M.L.A, Ms. Richardson simply indicated that he needed health supports. Tr. at 6765 (A. Green). She did not identify, as she did for some individuals, M.L.A.’s renal failure, aggression, hydrocephaly, and medically fragility. Tr. at 6765 (A. Green). Similarly, Ms. Richardson was pointedly asked why she rated C.G. as “high” for potential placement in a community setting. Tr. at 704 (Richardson). After rereading C.G.’s IPP, Ms. Richardson’s unresponsive answer was:
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I rated her as high because I thought what I was seeing was an indication that she was making progress, that she was stabilizing, that she had some capabilities that would allow for a transition in spite of the fact that it was really clear that the team had said that her last transition had been difficult. So my thinking was that were she to make another transition, it would be a good idea if you just make one more, not try to transition her through team placements or something, but to really think about what a good community placement might be for her, and then decide whether that would be possible to do and appropriate to do. And if it were, then proceed in that direction, not in a hurried fashion, but in a measured fashion.
Tr. at 704-05 (Richardson).
Ms. Richardson also rated R.S.C. as “high” for consideration for community placement.
Tr. at 5995 (Walsh). R.S.C. is a blind 29-year-old woman with profound cognitive disabilities.
She has been diagnosed with cerebral palsy and anxiety disorder. Her overall age equivalent is
17 months. She needs total personal care and intense supervision. She is not ambulatory and
uses a wheelchair for movement. She can only express her needs and wants through gestures
and facial expressions. She takes psychotropic medications. She has a behavior plan for
agitation, flails her arms and legs, and has high pitched vocalizations. She disrobes, tears her
disposable briefs, and sometimes bites herself. Tr. at 5996 (Walsh). If R.S.C. was discharged to
the community she would likely be discharged to a nursing home because of her exceptional
clinical needs. Tr. at 5996 (Walsh). At age 29, it would not be appropriate for R.S.C. to be
served in a nursing home. Ms. Richardson’s cavalier rating of “high” for R.S.C. was wrong. Tr.
at 5996 (Walsh). RSC’s Interdisciplinary Team made professional judgments, concluding that
R.S.C. should be served at CHDC and documented that decision in R.S.C.’s IPP. Tr. at 5997
(Walsh).
Similarly, Ms. Richardson’s representation that J.S.R. would get the attention he craves
in the community, which would, in turn, cure his behavior problem, was a transparent attempt to
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perpetuate a fallacy and further her agenda. Tr. at 5993 (Walsh). Advocates like Ms. Richardson attempt to perpetuate the myth that facilities like CHDC cause behavior problems and if you take someone out of a facility, there behavior problems will go away. Tr. at 5993 (Walsh). There is absolutely no basis for that unfounded speculation and Ms. Richardson offered no evidence to support it. Tr. at 5993 (Walsh). People who have behavior problems are prone to have them regardless of where they live and the setting, in and of itself, is not necessarily a behavioral change agent. Tr. at 5993 (Walsh). Contrary to Ms. Richardson’s theory that CHDC caused J.S.R.’s behavior problems, J.S.R.’s records show that his behavior has consistently improved since he has been at CHDC. Tr. at 5993-94 (Walsh). In fact, by June 2009, J.S.R. had ten straight months without aggressive episodes. Tr. at 5993-94 (Walsh). By Ms. Richardson’s logic, he should stay where he is. Tr. at 5994 (Walsh).
30. DEFENDANTS’ EXPERTS’ ANALYSIS OF MS. RICHARDSON’S EVALUATION
Defendants’ experts, Drs. Kevin Walsh and Theodore Kastner, did an objective, secondary analysis of Ms. Richardson’s chart, where she listed all of the CHDC residents she reviewed. Tr. at 4340-41 (Kastner), 5989 (Walsh). Defendants’ experts determined that, at best, only half of the information in Ms. Richardson’s chart could provide information about the functional status of the CHDC residents. Tr. at 5989 (Walsh). They testified that the criteria Ms. Richardson used in her evaluation simply could not be determined. Tr. at 4340-41 (Kastner), 5990-92 (Walsh). Her assignment of high, medium, and low designations appeared to be random. Tr. at 4340-4341, 5991 (Kastner, Walsh). As part of their objective, secondary analysis of Ms. Richardson’s chart, Drs. Walsh and Kastner did determine that Ms. Richardson did not use ambulation, mobility, health status, cognitive level, adaptive level, aggressive behavior, and
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type of behavior plans as criterion for rating CHDC’s residents on her continuum. Tr. at 4340-41 (Kastner), 5991 (Walsh). Dr. Walsh testified that professional literature identifies variables such as ambulation, mobility, health status, cognitive level, adaptive level, and behavior issues that predict community success. Tr. at 5991 (Walsh). Yet, Ms Richardson chose to ignore those criteria. Tr. at 4340-41 (Kastner), 5991 (Walsh). Defendants’ experts finally concluded that Ms. Richardson had no basis for any of her opinions about CHDC’s transition services. Tr. at 434041 (Kastner), 5994 (Walsh).
As to Ms. Richardson’s sampling, Dr. Kastner testified that [s]he went to lists of individuals and chose a disproportionately greater number from the group that had the greatest needs and a disproportionately high number from the group that had the lesser clinical needs and, as a result, was really unable to reach a conclusion about the overall needs of the population at the facility. Tr. at 4344 (Kastner).
Dr. Kastner expressed particular concern with Ms. Richardson’s claim that she could decide that a CHDC resident could be placed in a less restrictive setting without any assessment of the individual, and in some cases without even seeing the individual. Tr. at 4339 (Kastner). Commenting on Ms. Richardson’s methodology, Cr. Kastner testified
I think that’s akin to just operating a Ouija board. Professional judgment requires a professional assessment. It’s absurd to think that anyone could walk into a room and make an assessment of what would be clinically indicated for an individual without undertaking a clinical assessment. One of the values and real importance of the ICF/MR model is the interdisciplinary approach to treatment planning. And because the process is driven by multiple professional providing their input, a comparable assessment would need to be done. Tr. at 4339 (Kastner).
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Dr. Kastner added that Ms. Richardson’s opinion, which she attempt to extrapolate to half of the CHDC population was “an outrageous opinion, because it is not based in any assessment of the individual needs…of the person, and could result in significant harm if someone were to act upon those recommendations or create an expectation that half of the individuals who currently reside at CHDC could adequately be served in less restrictive settings.” Tr. at 4344-45 (Kastner). As Dr. Kastner testified, the Department of Justice compelled residents of an ICF/MR facility in Nebraska to be transferred to less restrictive settings, and those individuals died at an extremely high rate because the settings they were transferred to were clinically inappropriate. Tr. at 4345 (Kastner).
During his testimony, Dr. Kastner also noted that he toured community providers with Ms. Richardson and expressed concern that Ms. Richardson related on selective portions of those tours to the Court. Tr. at 4312 (Kastner). Dr. Kastner testified that Easter Seals, United Cerebral Palsy, Pathfinders, and the Faulkner County Workforce Center all indicated that less restrictive programming funded through the waiver and state Medicaid plan was often unable to meet the needs of individuals who required a more intensive service model, such as an ICF model. Tr. at 4312 (Kastner). Dr. Kastner also testified that those community providers expressed appreciation for their respective relationships with CHDC and ability to rely on CHDC to serve clients from their programs on short and long term bases. Tr. at 4312 (Kastner).
31. MS. RICHARDSON’S LIMITED CONCLUSION Ms. Richardson’s trial testimony was significantly different than the opinions she expressed in her report, but because Plaintiff’s counsel refused to offer any of its experts’ reports as evidence, Ms. Richardson’s testimony stands alone. At trial, Ms. Richardson testified that it
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was not her recommendation that any resident of CHDC be discharged or transferred from CHDC based on her review. Tr. at 553-54, 693, 708 (Richardson). Ms. Richardson merely testified that in her opinion as many as 50 percent of CHDC residents could have their plans “upgraded.” Tr. at 553-54, 716 (Richardson). She actually testified that “perhaps 50 percent could look at really having their transition plans upgraded….” (emphasis added) Tr. at 553-54 (Richardson). CHDC does not have a separate document called a “transition plan” and no ICF/MR is required to have such plans. Tr. 4041 (Kastner). CHDC has Individualized Program Plans with a section entitled “transition plan,” but Ms. Richardson’s implication that transition plans are a separate documents at CHDC is further evidence of her cavalier review of services at CHDC. Tr. at 4041(Kastner). Ms. Richardson offered no standard for making that assessment. Tr. at 638-42, 668 (Richardson). Ms. Richardson admitted that neither the ICF/MR regulations nor professional standards require a formal transition plan, as she proposed in her direct testimony. Tr. at 687 (Richardson).
Q. PLAINTIFF’S PRIVATE PROVIDERS ARE NOT TREATING PROFESSIONALS AND OFFERED SELF-SERVING TESTIMONY
All of the community providers that testified for Plaintiff operate privately owned, multi-million dollar corporations that would reap direct financial benefit if they received any referrals from CHDC. Furthermore, none of those witnesses was qualified to offer a clinical opinion about the care of CHDC residents.
First Step, Inc. has an annual budget of $32 million. Tr. at 862 (Bland). Its revenue comes from developmentally disabled Arkansans’ waiver funds for the services it provides. Tr. at 863 (Bland). Ms. Bland estimated that First Step, Inc. charges its waiver clients an average of $40,000 to $45,000 per year or higher. Tr. at 887-888 (Bland). Ms. Bland admitted that her estimate does not reflect total costs of care for individuals served by First Step, Inc. because, for
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example, individuals reside in their families’ homes and receive medical care from other providers. Tr. at 888 (Bland). Ms. Bland testified that if First Step, Inc. is able to serve more severely disabled people through the waiver, such as individuals currently residing at CHDC, it will be able to charge those clients more for its services. Tr. at 888 (Bland). Among the 1600 individuals for whom First Step, Inc. provides services, only about 165 of those individuals use state waiver funds. Tr. at 917 (Bland). Ms. Bland misrepresented the number of individuals for whom First Step, Inc. provides services through the state waiver. Tr. at 918 (Bland). In her direct testimony, Ms. Bland inflated the number of individuals First Step, Inc. serves through the state waiver. Tr. at 918 (Bland). She testified that First Step, Inc. serves 206 individuals through the waiver, but First Step, Inc. actually serves only 168 individuals through the waiver. Tr. at 918 (Bland). In her direct testimony she misrepresented that First Step, Inc., was among the five largest providers of waiver services for developmentally disabled Arkansans. Tr. at 918 (Bland). Ms. Bland admitted that First Step, Inc. is not among the largest five providers of waiver services in Arkansas. Tr. at 918 (Bland).
Ms. Bland also owns and operates five other corporations, ironically named “On Our Own, Inc.,” “On Our Own II, Inc.” “On Our Own III, Inc.,” “On Our Own IV, Inc.,” and “On Our Own V, Inc.” Tr. at 953 (Bland) (and AR Sec of State). Ms. Bland’s “On Our Own” companies own all of the real estate where the clients, to whom First Step, Inc. provides residential services, reside. Tr. at 953 (Bland). First Step, Inc. is the managing agent of the real estate where those clients live and the program and service provider. Tr. at 954 (Bland). The clients to whom First Step, Inc. provides residential services turn their money over to First Step, Inc., First Step, Inc. then pays rent to one of Ms. Bland’s five “On Our Own” companies. Tr. at
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953 (Bland). Ms. Bland’s testimony was questionable because her testimony is directly connected to her potential, personal financial gain. Tr. at 862 (Bland).
Ms. Bland holds no experience, advanced credentials, licensure, or certification that would allow her to second-guess licensed, treating professionals. Tr. at 926-27 (Bland). Despite overseeing First Step, Inc.’s provision of educational services to children, Ms. Bland has never been certified as a special education teacher and has never taught special education. Tr. at 926 (Bland). Ms. Bland’s only distantly relevant educational background is a bachelor’s degree in sociology from Southern Arkansas University which she received over 40 years ago. Tr. at 926 (Bland). Ms. Bland testified that she “graduated from college with a degree in a helping field…” and then later denied that she testified in that way. Tr. at 926 (Bland). Ms. Bland deliberately misrepresented her anticipated testimony to Defendants’ counsel as recently as one (1) day before she testified. Tr. at 910 (Bland). Ms. Bland misled Defendants’ counsel about her anticipated testimony by disingenuously claiming that she was reluctant to testify. Tr. at 910 (Bland). Ms. Bland deliberately hid the fact that she reviewed CHDC IPPs from Defendants’ counsel in an effort to needlessly disrupt Defendants’ case. Tr. at 910 (Bland). Ms. Bland testified that she believed that no one under the chronological age of majority should ever see the inside of an institution. Tr. at 960 (Bland).
Ms. Bland’s cousin resides at CHDC because her needs cannot be met by a private provider or in an alternative residential setting. Tr. at 670 (Bland). Ms. Bland has a cousin who resides at CHDC and she has made no effort to seek or discuss alternative residential placement with her family. Tr. at 912, 968 (Bland). Ms. Bland has not even visited CHDC in the past 15 years, in either a professional or personal capacity. Tr. at 912 (Bland). Whether financially motivated or not, Ms. Bland was mometarily able to set aside her personal agenda and admit that
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guardians, such as her cousin’s guardian, should absolutely not be forced to consider community placement. Tr. at 670 (Richardson).
Arkansas Support Network has an annual budget of over $10 million. Tr. at 1512 (Vire). The majority of work done by Arkansas Support Network is providing direct care workers for individuals with disabilities who reside in group homes or privately operated residences, including HUD housing. Tr. at 1507 (Vire). Arkansas Support Network employs only 450 people, 400 of whom are direct care staff. Tr. at 1507, 1512 (Vire). Arkansas Support Network operates a small employment program with 50 disabled individuals enrolled, but only 39 of those individuals are actually employed. Tr. at 1507 (Vire). Arkansas Support Network does not provide any financial support for disabled Arkansans who want to own their own homes, despite Dr. Vire claiming that Arkansas Support Network had a program to provide home ownership for the disabled. Tr. at 1509 (Vire). The individual development accounts, to which Dr. Vire claimed the Arkansas Support Network had some relationship, are actually a Department of Human Services program, not an Arkansas Support Network program. Tr. at 1509 (Vire).
Despite reviewing at least one CHDC IPP, and on direct examination, testifying that he could serve someone with personality change due to cerebral palsy, Dr. Vire admitted that he did not know what personality change due to cerebral palsy was. Tr. at 1533 (Vire). Dr. Vire admitted that he has a “personal bias…that we should not have institutions.” Tr. at 1542-43 (Vire). Dr. Vire testified that he believes it is futile to support a system of care for the disabled that provides for community based programs and institutional care, and Dr. Vire contends that institutional programs should be eliminated to resolve the dilemma that he perceives. Tr. at 1547 (Vire). Dr. Vire testified that he believed the Plaintiff’s lawsuit against CHDC, DDS, DHS, and the State of Arkansas was some kind of “a humanitarian argument.” Tr. at 1546 (Vire).
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However, even Dr. Vire conceded that he would not question the decision of a guardian who opted to have his or her loved one receive services at CHDC. Tr. at 1543 (Vire).
Cindy Alberding is the executive director of a privately owned company called, Independent Case Management, Inc. Tr. at 1327-28 (Alberding). Ms. Alberding is also the president of an organization called the Arkansas Waiver Association. Tr. at 1330 (Alberding). Ms. Alberding began her 20 tenure at Independent Case Management, Inc., as the vice president of that company. Tr. at 1328 (Alberding). Independent Case Management, Inc., provides services to approximately 450 clients. Tr. at 1331, 1332 (Alberding). Independent Case Management, Inc., is paid approximately $35,000 to $40,000 per client for providing its limited services, which do not include residential, educational, day programs, and all Medicaid state plan services to its clients. Tr. at 1333, 1384 (Alberding). Ms. Alberding’s educational background is limited to a bachelors degree in special education. Tr. at 1383 (Alberding). Ms. Alberding worked as a special educator for only three years from 1982 to 1985. Tr. at 1383 (Alberding). Ms. Alberding holds no advanced credentials, licenses, or certifications. Tr. at 1383-84 (Alberding).
Jeff Lambert is the assistant executive director for programs at Bost, Inc, a privately owned corporation based in Fort Smith, Arkansas. Tr. at 1858, 1919 (Lambert). He holds a bachelor’s degree in organizational management, but has no clinical or professional training. Tr. at 1892 (Lambert). Bost, Inc. has an annual budget of approximately $26.5 million. Tr. at 185960 (Lambert).
32. PLAINTIFF’S WITNESSES’ COMMUNICATION WITH DEFENDANTS
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All of the private providers who testified for the Plaintiff also admitted that they had an active relationship with DDS and CHDC to the benefit of the disabled individuals they serve. As discussed more fully below, DDS maintains information about services provided by all community providers, which it uses to refer individuals, guardians, and family members who could benefit from those services. Tr. at 1448 (Cromer), Pl. Ex. 265, 1395 (Alberding). Additionally, Independent Case Management, Inc. has had clients leave its services and opt for placement at Arkansas’ human development centers. Tr. at 1336 (Alberding). Independent Case Management, Inc., recently had at least one client’s guardian remove his child from Independent Case Management, Inc.’s services and opt for his child to receive services at CHDC. Tr. at 139394 (Alberding). Ms. Alberding added that it was possible that her staff have been contacted by CHDC personnel inquiring about services for CHDC residents that she would not necessarily know about. Tr. at 1395 (Alberding). Bost, Inc., has had two former CHDC residents, J.D.G. and J.M., transitioned to its programs recently. Tr. at 1898 (Lambert). Several years ago a CHDC resident, R.W., was transitioned from a Willow home at CHDC to Bost, Inc. (She later moved to another state.) Tr. at 1899 (Lambert). CHDC and Bost, Inc., have been in contact about specific services offered by Bost, Inc., and potentially available for specific CHDC residents. Tr. at 1898-99 (Lambert). CHDC personnel have solicited, and received, specific information about services offered by Bost, Inc. Tr. at 1899 (Lambert). Contrary to Plaintiff’s allegation, CHDC has transitioned at least one (1) child from CHDC to the privately operated community provider, Bost, Inc. Tr. at 1865 (Lambert).
Arkansas Support Network has also provided services to individuals who previously resided at CHDC. Tr. at 1523 (Vire). Dr. Vire admitted that the staff of Arkansas Support Network may have had conversations with CHDC personnel about specific CHDC residents that
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Dr. Vire did not know about. Tr. at 1548-49 (Vire). CHDC personnel also have solicited information from First Step, Inc. about services potentially available for specific CHDC residents and had conversations with First Step, Inc. personnel about the scope of those services. Tr. at 866 (Bland). As recently as August 2010, CHDC inquired about services offered by First Step, Inc., for a specific CHDC resident. Tr. at 921 (Bland). First Step, Inc. had to inform CHDC that it did not provide the services needed for that CHDC resident. Tr. at 921 (Bland). Ms. Bland misled the Court in her direct testimony when she suggested that First Step, Inc. had never referred any of its clients to CHDC. Tr. at 920 (Bland). Ms. Bland admitted that First Step, Inc. has referred at least one client to CHDC’s outreach program. Tr. at 920 (Bland). Ms. Bland also admitted that First Step, Inc. sought CHDC’s assistance in developing a behavior management program for a First Step, Inc. client and that CHDC aided First Step, Inc. in developing that program including providing First Step, Inc. with information, tools, and methods for helping that client. Tr. at 920 (Bland). First Step, Inc. has referred at least one (1) child back to his school district and that school district in turn referred that child to a human development center. Tr. at 936 (Bland). Ms. Bland admitted that she had received clients who were referred, and transferred from, the Human Development Centers, and she specifically recalled such transitions from the Booneville Human Development Center. Tr. at 921 (Bland). Ms. Bland added that she may have had clients transfer from CHDC to First Step, Inc., despite her claim that she could not recall any such transfers during her direct testimony. Tr. at 920-21 (Bland).
33. INFORMATION ABOUT SERVICES AVAILABLE IN THE COMMUNITY
The Division of Developmental Disabilities Services maintains detailed information about services provided by all community providers which it uses to refer individuals, guardians,
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and family members who could benefit from those services. 1448 (Cromer), Pl. Ex. 265, 1395 (Alberding). Guardians, family members, and individuals get information about First Step, Inc., from its website, treating physicians, telephone contact, self-referral, and other mechanisms. Tr. at 864 (Bland). Most recipients of First Step, Inc.’s services receive those services because they have been referred by their primary care physicians. Tr. at 864-65 (Bland). Ms. Bland also offers potential recipients of First Step, Inc.’s services information about other privately operated service providers, but has not and does not tell those people about the possibility of receiving services at a human development center. Tr. at 898-99 (Bland). Bost, Inc. receives client referrals from DDS and other state agencies. Tr. at 1863 (Bland). Arkansas Support Network also gets referrals to its program from the State. Tr. at 1522 (Vire). In his direct testimony, Dr. Vire misrepresented his organization’s ability to inform guardians and potential clients about the services offered by Arkansas Support Network and that there is no prohibition on him or Arkansas Support Network engaging in that activity. Tr. at 1558 (Vire). Guardians or individuals who want services, such as those provided by Arkansas Support Network, are given information about Arkansas Support Network and similar organizations, and guardians or individuals are able to contact Arkansas Support Network or similar organizations directly. Tr. at 1522-23 (Vire). Independent Case Management, Inc. sends information out to people that contact it for information. Tr. at 1395 (Alberding). Independent Case Management, Inc. also does some outreach about some services it provides. Tr. at 1395 (Alberding). Its employees have also spoken at different community groups about services it provides. Tr. at 1395 (Alberding). Its representatives have also spoken at transition meetings at schools when the school districts invite it. Tr. at 1395 (Alberding).
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34. DEFENDANTS’ PROVIDER FAIRS Although the State of Arkansas has no obligation to host provider fairs, it does so as part of its commitment to provide a continuum of services for the developmentally disabled. Tr. at 841 (Green). The provider fairs organized by DDS are specifically designed to allow private providers to reserve a table, set it up and provide information about their organizations, and answer questions from consumers, families, guardians, and whoever else attends. Tr. at 1869-70 (Lambert). Plaintiff’s community provider witnesses conceded that the provider fairs are used to help them market their services. Tr. at 1339, 938 (Alberding, Bland). In the past year, there have been at least four (4) provider fairs hosted at human development centers in Arkansas. Tr. at 1338-39 (Alberding). Several providers, CHDC personnel, families of residents, and residents of CHDC attended the community provider fair at CHDC in April 2010. Tr. at 983 (Bland). Two (2) staff members of First Step, Inc. attended the community provider fair at CHDC in April 2010, although Ms. Bland did not even know the provider fair was held. Tr. at 983 (Bland). Dr. Vire erroneously testified that he and Arkansas Support Network were not invited to the community provider fair hosted by CHDC. Tr. at 1524 (Vire). Although Dr. Vire vehemently denied he was invited to the community provider fair hosted by CHDC, Ms. Green did invite Dr. Vire and Arkansas Support Network to attend the community provider fair. Tr. at 6781, 6791-92 (A. Green); Def. Ex. AG-1. CHDC invited First Step, Inc. to a provider fair at CHDC in 2010 and First Step, Inc. attended that provider fair. Tr. at 923 (Bland). Independent Case Management, Inc., was also invited to the provider fair at CHDC, but chose not to attend. Tr. at 1338 (Alberding). In the months before trial, personnel from Bost, Inc. attended a meeting at CHDC regarding transitioning residents from the Alexander Human Development Center. Tr. at 1868 (Lambert).
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When asked directly by Plaintiff’s counsel, Mr. Lambert testified that he was not disappointed in the turnout for the provider fairs because “a lot of times you don't have participation from the families.” Tr. at 1870 (Lambert).
Plaintiff’s community providers’ questionable commitment to actually serving individuals in Arkansas’ human development centers is revealed by their involvement with residents of the Alexander Human Development Center. For example, despite Dr. Vire’s claims that he has made efforts to serve individuals transitioning from Alexander Human Development Center, none of those individuals have selected Arkansas Support Network as a provider for any services. Tr. at 1550 (Vire). First Step, Inc. had two staff members attend two community provider fairs at the Alexander Human Development Center in August 2010, but Ms. Bland did not personally attend either of those events. Tr. at 983 (Bland). No residents of the Alexander Human Development Center have signed a provider selection form indicating that they want Independent Case Management, Inc., as their provider. Tr. at 1383 (Alberding). Other than attending a provider fair, neither Ms. Alberding, nor Independent Case Management, Inc., has made any effort to participate in the process of transitioning residents from the Alexander Human Development Center, despite being aware that that facility is closing. Tr. at 1383 (Alberding).
35. PLAINTIFF’S PRIVATE PROVIDER WITNESSES CONDUCTED A LIMITED REVIEW OF CHDC RESIDENTS’ OLD INDIVIDUALIZED PROGRAM PLANS
None of Plaintiff’s provider witnesses selected the IPPs they reviewed and none of them even knew how those documents were selected for their review. Tr. at 1555, 1874, 1901-02, 1377, 1380, 877, 912-13 (Vire, Lambert, Alberding, Bland). The Plaintiff selectively chose a limited number of old IPPs for CHDC residents and presented them to Ms. Bland and the other
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community providers with specific instructions to “review the needs, the diagnosis, and anything of significance related to the needs and decision in the program plan, the goals and objectives.” Tr. at 866, 868, 1377 (Bland, Alberding). Other than the IPPs they reviewed, Plaintiff’s witnesses did not review any records, attend any IPP meetings, meet with any CHDC resident, CHDC residents’ guardians, or CHDC staff, or otherwise attempt to better understand the CHDC residents about whom they would testify. Tr. at 1880, 1902-03, 1379-80, 1532, 1554-55, 912-13, (Lambert, Alberding, Vire, Bland). Plaintiff’s witness’ self-serving testimony is even more troubling when one considers Defendants’ expert, Dr. Kastner’s research on the risk of mortality in community based settings as compared to institutions. Dr. Kastner conducted research in the state of California that demonstrated that there was an elevated risk of mortality associated with living in the community as compared to living in an “institution.” Tr. at 3965-66 (Kastner).
Plaintiff’s non-expert witness, Dr. Vire’s, testimony helped reveal why these witnesses were willing to testify that they could serve individuals they never met and for whom they only had a single IPP for each individual, in some cases over two years old. Dr. Vire explained, that “[w]e don't discuss whether or not to accept the person; we discuss how to provide the supports once they come.” Tr. at 1520 (Vire). Dr. Vire testified, “our default answer is yes. We never go into any referral thinking will we or won't we. We only think about how will we.” Tr. at 1520, 1527 (Vire). Ms. Alberding expressly testified that she would have liked additional information on all of the CHDC residents, whose IPPs she reviewed. Tr. at 1380 (Alberding).
Some of Plaintiff’s witnesses demonstrated that their claim that they could serve CHDC residents was purely hypothetical. Dr. Vire testified that the Arkansas Support Network could only provide services for the individuals whose IPPs he reviewed if it had no limit on resources. Tr. at 1527 (Vire). Mr. Lambert also admitted that his testimony that Bost, Inc. could serve
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CHDC residents assumed unlimited funding. Tr. at 1872 (Lambert). Ms. Alberding only concluded that the individuals, whose IPPs she reviewed, could be served in the community if the waiver funding was unlimited. Tr. at 1368, 1379 (Alberding). Similarly, Ms. Bland testified that she thought on direct examination that Plaintiff’s counsel was asking her whether the services identified in the IPPs were generally available in the community, not whether she or First Step, Inc., could actually serve any particular individual. Tr. at 912 (Bland). Ms. Bland would not be willing to say that First Step, Inc., would or would not be able to provide services for an individual unless she had all of the information available about that individual. Tr. at 925 (Bland). Not surprisingly, none of Plaintiff’s witnesses rated any of the CHDC residents, whose IPPs they reviewed, consistently with Ms. Richardson’s ratings or even each other. Tr. 974-77, 1904-05, 1906-07, 1556, 1398, 1375, 1400 (Bland, Lambert, Vire, Alberding).
36. PLAINTIFF’S WITNESSES’ SEGREGATED SERVICES Two of Bost, Inc.’s ICF/MR facilities are segregated by sex. Tr. at 1897 (Lambert). The 15 bed ICF/MR facility operated by Bost, Inc. was formerly a 30-bed facility, which stands out as an institutional building in the community where it is located. Tr. at 1897 (Lambert). Bost, Inc., segregates the clients it serves based on the needs of those clients, with individuals who need more nursing care residing at its ICF/MR facilities. Tr. at 1896. (Lambert) Individuals receiving services from First Step, Inc. are also not integrated into the community. Tr. at 865-66 (Bland). The apartment buildings operated by First Step, Inc. are segregated settings. Tr. at 977 (Bland). Ms. Bland testified that grouping individuals on the basis of their functionality is a reasonable practice. Tr. at 978 (Bland). Individuals served by First Step, Inc. in its group homes, are grouped in residences based on their functional level, and have diagnostic ranges from mild to moderate mental retardation. Tr. at 958 (Bland). Ms. Bland’s
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apartments and group homes are segregated based on severity of mental retardation, so that people with mild and moderate retardation will not live in the same building as individuals who have severe or profound mental retardation. Tr. at 954-55 (Bland). Individuals served by First Step, Inc. in its group homes are grouped in residences based on their functional level, and have diagnostic ranges from mild to moderate mental retardation. Tr. at 958 (Bland). The school-aged children served by First Step, Inc. do not receive their education with non-disabled peers. Tr. at 889 (Bland). First Step, Inc. provides education services to school-aged children exclusively in a segregated setting, with no integration with non-disabled peers. Tr. at 889 (Bland). First Step, Inc., provides educational services in a segregated setting. Tr. 934 (Bland). One of First Step, Inc.’s special education teachers is responsible for 15 to 16 children and could be responsible for up to 20 students. Tr. at 933-34 (Bland).
37. PLAINTIFF’S WITNESSES’ LIMITED SCOPES OF SERVICES WOULD NOT ADEQUATELY SERVE ANY CHDC RESIDENT
Even if Plaintiff’s witnesses concluded that they could serve CHDC residents, the Court cannot assume that CHDC residents could be, or would even want to be, served by those providers. As Defendants’ expert, Dr. Kastner, noted, the most integrated setting is not based only on where an individual has the greatest opportunities to interact with non-disabled persons. Tr. at 3986 (Kastner). One must also consider whether the setting meets the needs of the individual. Tr. at 3986 (Kastner). Plaintiff’s witnesses do not provide all of the services needed for CHDC residents. Tr. 3942 (Kastner). None of the community providers that testified for Plaintiff provides medical, psychiatric, psychological, physical, occupational, or speech therapy, dental, dietetic, or food services for the individuals they serve. Tr. at 1333, 1384, 1389, 1507, 1551-52, 1899-1900 (Alberding, Vire, Lambert). Aside from Bost, Inc. which has no openings
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in its ICF/MR residential facilities, none of the community providers that testified for the Plaintiff provide residential services through their waiver funding. Tr. at 1867, 1896-79, 189596, 863, 865, 1332, 1550 (Lambert, Bland, Vire). Plaintiff’s witnesses essentially testified that they could provide direct care services if CHDC clients were willing to relocate to areas of the state where those providers operated.
Healthcare providers are generally not funded through the waiver. Tr. at 3942 (Kastner). The State’s Medicaid Plan pays for many services for individuals in the community, including doctors’ visits, dental services, hospitalizations, the first two hours of personal care services, some prescriptions, some medical equipment, among other things. Tr. at 1385 (Alberding). Among other things, the State Medicaid Plan has caps on services, including physician services, mental health services, physical therapy, occupational therapy, speech therapy, prescription medications, durable medical equipment, and hospital days that an individual can receive in a year. Tr. at 1349, 1350, 1351, 1901 (Alberding, Lambert). Community providers also can not provide 24-hour nursing even if an individual required that service. Tr. at 1349 (Alberding). Similarly, they cannot ensure services to individuals who are ventilator-dependent, even if an individual required that service. Tr. at 1350 (Alberding). Mechanical restraints are not available in community based programs. Tr. at 1535 (Vire). Also, active treatment, which every CHDC resident requires, is not provided under the ACS waiver. Tr. at 4038 (Kastner).
Some developmentally disabled individuals served by Bost, Inc. share housing with Bost Inc. staff. Tr. at 1862 (Lambert). Bost, Inc. provides some services in congregate settings. Tr. at 1862 (Lambert). For some individuals, the day program services provided by Bost, Inc. are provided in the same building where those individuals reside. Tr. at 1863 (Lambert). At the ICF/MR facilities operated by Bost, Inc., personnel are permitted to withhold personal property
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from the individuals they serve as punishment if those individuals are being destructive. Tr. at 1895 (Lambert). If clients served by Bost, Inc. are at risk of physical harm, Bost, Inc. personnel are permitted to use “adverse stimuli” in accordance with their training. Tr. at 1895 (Lambert). Bost, Inc., is not permitted to use any type of mechanical or personal restraint on its clients. Tr. at 1894-95 (Lambert). Bost, Inc. can only arrange for 24 on-call nursing services if a client needed a nursing component and the funding was specially approved by the state’s Medicaid Plan. Tr. at 1872 (Lambert). Bost, Inc. cannot provide 24-hour nursing care in the community. Tr. at 1908, 1916 (Lambert). Bost, Inc. can only arrange for services for someone who is ventilator dependent if that individual was able to get special funding from the state’s Medicaid plan and that care did not conflict with the Nurse Practitioner’s Act. Tr. at 1872 (Lambert). Bost, Inc. has had at least one client who required transfer from Bost, Inc.’s services to a human development center because Bost, Inc. could not arrange the needed behavioral supports. Tr. at 1912 (Lambert).
Arkansas Support Network provides no nursing services. Tr. at 1513 (Vire). Dr. Vire testified that some community-providers in Arkansas may not be able to provide services to individuals with challenging behaviors. Tr. at 1521 (Vire). Dr. Vire admitted that an individual could not thrive in a community based program unless he or she could perform “grooming, hygiene, et cetera.” Tr. at 1535 (Vire). Arkansas Support Network has no way to support even 50 referrals if it got them at one time. Tr. at 1541 (Vire). In sheltered workshops operated by providers in the community, participants may only make pennies a day. Tr. at 151011 (Vire).
Independent Case Management, Inc. has no residential facilities and provides no residential services. Tr. at 1332 (Alberding). It also provides no services in group homes. Tr. at
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1381 (Alberding). Most of the individuals served by Independent Case Management, Inc. live with their families. Tr. at 1333 (Alberding). Some of the Independent Case Management, Inc. direct care staff live in the same apartment with the individual to whom they are supposed to be providing services. Tr. at 1333 (Alberding).
Despite testifying that Independent Case Management, Inc. could serve individuals with hearing impairment, vision impairment, mental illness, and seizures, and who are nonambulatory, have severe, challenging behavior problems, autism, or need psychotropic medication, Ms. Alberding could not say how many individuals that Independent Case Management, Inc. actually serves with those needs. Tr. at 1387 (Alberding). Independent Case Management, Inc. can only provide services to individuals who need frequent resuscitation if they have the financial resources to pay for it without waiver funds. Tr. at 1350 (Alberding).
Ms. Alberding testified that Independent Case Management, Inc. uses absolutely no restraints with any of its clients, but later admitted that some of its clients are required to use helmets in certain circumstances for the convenience of staff. Tr. at 1340-41 (Alberding). Independent Case Management, Inc. has not served any clients who require any restraint intervention other than redirecting. Tr. at 1389 (Alberding). Independent Case Management, Inc. does use time-out and exclusion if those contingencies are part of an individual’s behavior plan. Tr. at 1389 (Alberding). Independent Case Management, Inc. staff are trained on time-out and exclusion procedures by whoever prepares the behavior plan, but that training is not competencybased. Tr. at 1390 (Alberding). The only competency based training that Independent Case Management, Inc., staff receive is from DDS, when staff is initially hired. Tr. at 1392 (Alberding). Independent Case Management, Inc. staff receive no competency based training related to the specific needs of the individuals they serve. Tr. at 1392 (Alberding). Independent
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Case Management, Inc. staff receive no annual, or other, retraining that is competency-based, Tr. at 1392 (Alberding).
Injuries that occur involving Independent Case Management, Inc. are reported to Ms. Alberding exclusively. Tr. at 1388 (Alberding). Independent Case Management, Inc. has no quality assurance program. Tr. at 1388 (Alberding). Independent Case Management, Inc. does not collect or track overall data on seizures, and the only record of seizures is in the individual client’s files. Tr. at 1388 (Alberding). Ms. Alberding testified that Independent Case Management, Inc., can only provide services for an individual who has no more than onehundred seizures in a year. Tr. at 1385 (Alberding). If a client served by Independent Case Management, Inc. had a life-threatening seizure and needed treatment beyond his or her typical medication, Independent Case Management, Inc., staff must call 911. Tr. at 1390 (Alberding). Independent Case Management, Inc. has two nurses that may be available for call, but Ms. Alberding testified that a nurse will only be called “if there was some need for that.” Tr. at 1391 (Alberding). The only mortality review for Independent Case Management, Inc. clients is done by the DDS Mortality Review Committee. Tr. at 1393 (Alberding).
First Step, Inc. cannot provide all of the services that children at CHDC require. Tr. at 977 (Bland). For example, First Step, Inc., is not equipped to provide specialized service for medically-fragile children or adults, and is only able to provide services for those individuals in the same setting as individuals who are not medically-fragile. Tr. at 883-84 (Bland). Ms. Bland testified that First Step, Inc. is not equipped to restrain individuals under any circumstances. Tr. at 884 (Bland). Ms. Bland testified that the individuals, whose IPPs she reviewed, could fail in a community placement. Tr. at 976 (Bland). Over the past five years, Ms. Bland estimated the
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average age of death for clients served by First Step, Inc., to be in the tweenties or younger. Tr. at 971 (Bland).
First Step, Inc. direct care staff receive no competency-based training on medication side effects. Tr. at 967 (Bland). Ms. Bland defended First Step, Inc.’s lack of competency based training for medication side effects by claiming that her staff have passed a CNA exam sometime prior to their employment at First Step, Inc. but Ms. Bland admitted later that she knew the CNA exam did not test competency for medication side effects. Tr. at 968 (Bland). First Step, Inc. trains new employees with “one full week of orientation” and then new employees are placed on the job and observed for 90 days and given feedback in the afternoon of their job performance. Tr. at 965-66 (Bland). First Step, Inc. employees have had limited aggressive management training. Tr. at 962 (Bland).
Residents of the group homes operated by First Step, Inc. are not permitted to be in their residences during the day unless they are sick. Tr. at 959 (Bland). Two nurses are required to be present if First Step, Inc. requires use of an EpiPen, but no individuals served by First Step, Inc. currently have an order for an EpiPen. Tr. at 963 (Bland). If nurses are required to administer an EpiPen, they must be called because they are not present in the particular area where the seizure would occur. Tr. at 963 (Bland).
Ms. Bland also operates several companies called “On Our Own, I,” “On Our Own II,” “On Our Own III,” etc., which owns the real estate where First Step, Inc. clients reside. First Step, Inc. is the managing agent of the real estate where those clients live and the program and service provider. Tr. at 954 (Bland). The apartments operated by Ms. Bland house residents from ages 18 to 70. Tr. at 954 (Bland). Not every apartment owned by the “On Our Own” companies is handicapped accessible. Tr. at 954 (Bland). As few as two units in each of the 14
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and 20 unit buildings owned by the “On Our Own” companies are actually handicap accessible. Tr. at 954 (Bland). Some of the buildings operated by Ms. Bland require consumers to use a buzzer at night if they require any assistance because First Step, Inc. only provides staff for those buildings during the day. Tr. at 955 (Bland). If a resident needs to use the buzzer system, First Step, Inc. attempts to have someone respond to the buzzer within five minutes. Tr. at 955 (Bland). At its so-called 24-hour staffed facilities, First Step, Inc. requires residents to use a pull cord if assistance is needed at night to alert the sole staff member who is stationed in an office in the building. Tr. at 956 (Bland). At First Step, Inc.’s facilities, residents are required to start their days at 6:00 am. Tr. at 956 (Bland).
The case mix at First Step, Inc. is not comparable to individuals served at CHDC. Tr. at 919 (Bland). First Step, Inc. cannot provide services to anyone who is ventilator dependant. Tr. at 893 (Bland). It cannot provide services to anyone requiring regular resuscitation. Tr. at 893 (Bland). It provides limited nursing services and it is not equipped to provide specialized service for medically-fragile children or adults, and is only able to provide services for those individuals in the same setting as individuals who are not medically-fragile. Tr. at 883-84, 959 (Bland). First Step, Inc., does not provide services to clients who require restraints. Tr. at 949-50 (Bland). Ms. Bland testified that First Step, Inc. is not equipped to restrain individuals under any circumstances. Tr. at 884 (Bland). First Step, Inc. personnel may use a “basket hold” or “four-point hold” if a client is aggressive. Tr. at 948 (Bland). Some professionals maintain that a “basket hold” is dangerous. Tr. at 949 (Bland).
First Step, Inc. has a policy that its personnel must call for an ambulance if a seizure lasts more than three (3) minutes. Tr. at 947 (Bland). Ms. Bland did not know why First Step, Inc. has that policy though. Tr. at 947 (Bland). She testified that direct care staff at First Step, Inc. must
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make a judgment about contacting emergency services when an individual has a seizure based on whether the seizure “scares the staff” or “makes the staff freightened.” Tr. at 944 (Bland). One First Step, Inc. client has up to 40 seizures each day. Tr. at 945 (Bland). The First Step, Inc. client that has up to 40 seizures a day is on medication that has not managed to control her seizures and, according to Ms. Bland, the child “is seizing pretty much all of the time.” Tr. at 945 (Bland).
The only way that First Step, Inc. maintains data for individual children is in a collective file of all injuries kept by Ms. Bland and a general file for each individual. Tr. at 942 (Bland). Ms. Bland described the composition of First Step, Inc.’s interdisciplinary team as “two administrators that have children that have developmental disabilities, the master's in social work, the OT, PT, and speech, particularly occupational therapist, the teacher, and the psychological examiner, and a psychiatrist if called in for contract, and a psychologist if called in for contract. Tr. at 930 (Bland). First Step, Inc.’s interdisciplinary team was only formed in the past year. Tr. at 930 (Bland). First Step, Inc. relies on only one masters’ level psych examiner to do behavioral assessments for the individuals it serves. Tr. at 930 (Bland). First Step, Inc. has no behavioral management committee. Tr. at 930 (Bland).
First Step, Inc.’s sole method for policing abuse and neglect relies on its employees to monitor each other and its clients to directly report abuse and neglect. Tr. at 950 (Bland). Ms. Bland claimed that First Step, Inc. has never substantiated any incidents of staff on client physical abuse. Tr. at 951 (Bland). She then qualified her testimony by adding “not that has been told to me.” Tr. at 951 (Bland). Ms. Bland admitted that First Step, Inc. has had instances of substantiated abuse based on its employees derogatory and caustic language directed toward its clients. Tr. at 950 (Bland). At First Step, Inc. no allegation of neglect would be made against a
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staff member where one client injured another client, unless the staff member was not in attendance and the client was left unsupervised. Tr. at 946 (Bland). Ms. Bland is the only person who conducts the investigations of abuse and neglect for First Step, Inc. the company that she controls and operates. Tr. at 946 (Bland). First Step, Inc. has had incidents of children in its classrooms injuring other children. Tr. at 945 (Bland).
Despite First Step, Inc., having a corporate policy and practice precluding “use [of] adverse stimuli for restraint,” Ms. Bland admitted that on at least one occasion that policy was flagrantly violated. Tr. at 884 (Bland). In an attempt to restrain or punish an individual served by First Step, Inc. an employee of First Step, Inc. taped a school-aged child to a chair. Tr. at 884 (Bland). Ms. Bland testified that she was sure that there are cases of abuse and neglect that do not get reported at First Step, Inc. and it has been sued several times for incidents that were reported. Tr. at 951 (Bland). Fist Step, Inc. has been sued for failing to protect the clients it is paid to protect. Tr. at 952 (Bland). In one case, First Step, Inc. was sued for allowing client-toclient sexual abuse. Tr. at 952 (Bland). In another case, First Step, Inc. was sued for leaving a child behind on a school bus all day. Tr. at 952 (Bland). In yet another case, First Step, Inc. was sued because it broke a child’s nose on a school bus door. Tr. at 952 (Bland).
The community provider witnesses Plaintiff offered at trial had no clinical training or experience and were not treating professionals. Their testimony that they could serve developmentally disabled individuals with complicated medical and behavior conditions was based on a limited review of one document and, therefore, would violate professional standards if any of those witnesses was a licensed professional. Even if their thinly disguised, self-serving testimony is considered, it is not credible as to a determination of whether Defendants are complying with the Americans with Disabilities Act.
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R. DEFENDANTS’ EXPERTS’ ANALYSIS OF TRANSITION SERVICES AT CHDC
Defendants’ experts, Drs. Walsh and Kastner, conducted an objective evaluation of admission and discharges at CHDC. At the time of their analysis of CHDC, Drs. Walsh and Kastner noted that CHDC had a waiting list of about 65 people, who are waiting for admission into CHDC. Tr. at 5980 (Walsh). CHDC has no waiting list for residents transitioning to community placements, but some residents may remain at CHDC while they are in the process of setting up services in the community. Tr. at 5978-79 (Walsh). Defendants’ experts noted that there were five individuals in the process of transitioning from CHDC. Tr. at 5980 (Walsh). The guardian of K.C. wanted placement in a particular community setting, which had no vacancies, so K.C. is waiting for an opening at that location. Tr. at 5980 (Walsh). Another CHDC resident, K.H., was in the process of transitioning to Louisiana because her mother had moved to that state and requested K.H.’s transfer. Tr. at 5980 (Walsh). K.L. was an adult respite admission, whose Medicaid waiver placement was in process. Tr. at 5980-81 (Walsh). R.L. was a minor who had been referred to UCP for placement. Tr. at 5981 (Walsh). B.M. was an adult whose guardian was still completing the waiver application process at the time of Drs. Walsh and Kastner’s review of CHDC. Tr. at 5981 (Walsh).
Among other things, Drs. Walsh and Kastner objectively documented admissions and discharges from CHDC over a multiple year period. Tr. at 5979 (Walsh). Defendants’ experts analyzed 16 respite admissions from February 2008 through November 2009, and 37 regular admissions from January 2008 through February 2010. Tr. at 5981 (Walsh). They also analyzed discharges from CHDC between July 2006 and March 2010, which was the most recent 46 month period available to them. Tr. at 5981 (Walsh). Defendants’ experts concluded that CHDC
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discharges an average of two individuals per month. Tr. at 5981 (Walsh). Defendants’ experts also determined that CHDC residents who are discharged go to a variety of other settings, including waiver services. Tr. at 5981 (Walsh).
Drs. Kastner and Walsh also noted that CHDC routinely conducts a consumer satisfaction survey. The consumer satisfaction survey is a direct measure of the quality of services at CHDC. Tr. at 4334, 6107 (Kastner, Walsh). Among other things, the CHDC satisfaction survey reveals that 97 percent of guardians are satisfied or very satisfied overall with CHDC. Tr. at 4334 (Kastner), 5956 (Walsh). The CHDC satisfaction survey also reveals that 77 percent of guardians are very satisfied overall with CHDC. Tr. at 4334 (Kastner), 5956 (Walsh).
Defendants’ experts concluded that professionals at CHDC exercised independent professional judgment about the appropriateness of CHDC for the individuals they serve and whether those individuals could be served in a less restrictive environment. Tr. at 4007-08 (Kastner). Defendants’ experts found that in every instance in their sample, CHDC was the least restrictive and most integrated setting. Tr. at 4007-08, 4086-87 (Kastner). Defendants’ experts noted that the judgments of treating professionals at CHDC were independent of the decisions made by guardians. Tr. at 4329 (Kastner). Defendants’ experts also found that treating professionals made independent judgments that CHDC was the least restrictive environment for school-aged children receiving residential and educational services at CHDC. Tr. at 4008 (Kastner).
Defendants’ experts also found that families and guardians of CHDC residents made informed, well-educated decisions with regard to whether CHDC was the most integrated setting appropriate for the needs of their loved ones to receive the services they need. Tr. at 4008 (Kastner). 98 percent of the time the guardians participated in the creation of the IPP and
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guardians expressed opinions based on their knowledge of the various options available to them in making a decision as to the least restrictive or most integrated setting. Tr. at 4087 (Kastner). As to the knowledge of parents and guardians about community settings, Defendants’ expert, Dr. Kastner, observed,
I think plaintiff’s experts underestimate the knowledge that family members have, specifically family members and guardians of individuals at Conway have. The discussions that are memorialized in the IPP and the social services notes reflect a very deep understanding of the capacity of both the Conway center and the waiver-funded programs to support their loved ones. Tr. at 4050 (Kastner). Defendants’ experts concluded that CHDC is a dynamic facility in that it admits and discharges residents regularly, in accordance with professional standards and guardian preferences. Tr. at 5979 (Walsh). CHDC population is not static and CHDC does not seek to maintain the status quo relative to keeping residents at CHDC. Tr. at 5982 (Walsh). Dr. Kastner concluded: People are being admitted, people are being stabilized, people are being discharged. There’s no effort on the part of CHDC to capture people as they come in and to not let them leave for the purposes of maintaining their census or maintaining their population or justifying their existence. Tr. at 4335 (Kastner). When CHDC residents or their guardians want to transition from CHDC, they are able to do so. Tr. at 5982 (Walsh). When a CHDC resident’s guardian wishes to have his or her loved one receive services in the community, that resident is referred to the waiver and given priority placement if there is a waiver waiting list. Tr. at 5978 (Walsh). CHDC residents who are transitioned to community-based residential services do not have to worry about moving at a reasonable pace because there is no waiting list to be discharged from CHDC. Tr. at 1426-27,
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5979-80 (Cromer, Walsh). Residents of CHDC are “first in line” to move if they wish to transition to a less restrictive setting. Tr. at 4331 (Kastner).
Defendants’ experts also analyzed opportunities for CHDC residents to interact with nondisabled peers. Drs. Walsh and Kastner analyzed data of on-campus activities from January through March 2009 and off-campus activities from January through June 2009. Tr. at 5957 (Walsh). There were 305 off-campus activities that included 1061 residents during the six month period reviewed by Dr. Walsh. Tr. at 5958 (Walsh). For the CHDC residents on the total care team, there were 30 off campus activities and 80 residents participated in the six-month period reviewed by Dr. Walsh. Tr. at 5958 (Walsh). Some of the off-campus activities that CHDC residents participate in, usually in groups of three or four, include: basketball games, baseball games, Boy Scout outing, bus ride, church services, Disney on Ice, eating out at restaurants, Lipizzaner Stallions, local library, the McGehee recreation center, Martin Luther King, Jr. celebration, movies, PB plunge, pet therapy, picnic, shopping, special Olympics, sports complex, Toad Suck park trips, local parks, Winter Jams 2009, and wrestling competitions. Tr. at 5959 (Walsh). Approximately 2,000 people are estimated to be involved in over 600 off-campus activities annually from CHDC. Tr. at 5959 (Walsh).
In the first three months of 2009, there were 592 on campus activities for residents at CHDC and there were 5,886 occasions of resident involvement in those activities. Tr. at 5959 (Walsh). Over the course of a year at CHDC, there are approximately 20,000 occasions of residents’ involvement in approximately 2,021 activities. Tr. at 5959 (Walsh). Some of the oncampus activities that CHDC residents participate in include arts and crafts, bingo, chapel, connect four, cookouts, decorating their homes, electric monopoly, fishing, giant jenga, gym
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Case 4:09-cv-00033-JLH Document 219 Filed 02/10/11 Page 380 of 383 activities, holiday programs, movies, mini golf, pizza parties, and many more activities. Tr. at 5960 (Walsh).
Defendants’ experts also testified that it would cost significantly more to serve individuals through the waiver, state Medicaid plan, and public housing as compared to serving individuals at CHDC. Tr. at 4313-17 (Kastner). Defendants’ experts’ conducted a study that showed that the cost of care in institutional programs was lower than the cost of care in community programs. Tr. at 3967 (Kastner). Dr. Kastner testified that the cost of care is actually lower at CHDC than the care that current residents would require if they were served through the waiver. Tr. at 3968 (Kastner).
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Thom PA
3511 Harrisburg, (717) Fax: Em
DUSTIN Arkansas
Attorney Arkansas 323 Little 501-682-1314

Respectfully submitted,
THE YORK LEGAL GROUP, LLC
/s/ Thomas B. York______________ as B. York, Esquire
Attorney I.D. No. 32522 Donald B. Zaycosky PA Attorney I.D. No 91821 Cordelia M. Elias PA Attorney I.D. No. 204965
North Front Street PA 17110
236-9675 (717) 236-6919 ail: tyork@yorklegalgroup.com Attorneys for Defendants
MCDANIEL Attorney General
/s/ Lori Freno____________________ Lori Freno, Senior Assistant Attorney General
I.D. No. 97042 Attorney General’s Office Center Street, Suite 200 Rock, AR 72201
Lori.freno@arkansasag.gov

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CERTIFICATE OF SERVICE
I, Thomas B. York, hereby certify that on this 10 th day of February 2011, I served a true and correct copy of Defendants’ Post-Trial Brief via the Courts electronic filing system, upon the following:

Benjam

in Tayloe, Jr., Esquire

U.S. Department of Justice -Civil Rights Division

950 Pennsylvania Avenue, N.W. Room 4300

Washington,

DC 20530

Benjamin.tayloe@usdoj.gov

Christopher

Cheng, Esquire

U.S. Department of Justice – Civil Rights Division

950 Pennsylvania Avenue N.W. Room 4300

Washington,

D.C. 20530

Christopher.cheng@usdoj.gov

Jacqueline

Cuncannan, Esquire

U.S. Department of Justice – Civil Rights Division

950 Pennsylvania Avenue N.W. Room 4300

Washington,

D.C. 20530

Jacqueline.Cuncannan@usdoj.gov

Kerry

Krentler Dean, Esquire

U.S. Department of Justice – Civil Rights Division

950 Pennsylvania Avenue N.W. Room 4300

Washington,

D.C. 20530

Kerry.k.dean@usdoj.gov

Laura

L. Coon, Esquire

U.S. Department of Justice – Civil Rights Division

Special

Litigation Section

950

Pennsylvania Ave, NW

Washington,

D.C. 20530

Laura.Coon@usdoj.gov

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Case 4:09-cv-00033-JLH Document 219 Filed 02/10/11 Page 383 of 383

Vincent

P. Herman, Esquire

U.S.

Department of Justice

Special

Litigation Section

950

Pennsylvania Ave, NW

Washington,

D.C. 20530

Vincent.Herman@usdoj.gov

Richard
Eastern Post Little

Pence, Jr., Esquire U.S. Attorney Office – Little Rock
District of Arkansas Office Box 1229 Rock, AR 72203-1229 Richard.pence@usdoj.gov

Nicholas M. May, Esquire

U.S.

Department of Justice

Special

Litigation Section

950

Pennsylvania Ave, NW

Washington,

D.C. 20530

Nicholas.May@usdoj.gov

Matthew J. Donnelly, Esquire

U.S.

Department of Justice

Special

Litigation Section

950

Pennsylvania Ave, NW

Washington,

D.C. 20530

Matthew.Donnelly@usdoj.gov

Jonathan M. Smith, Esquire U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. N.W. Washington, D.C. 20530 Jonathan.Smith@crt.doj.gov

/s/

Thomas B. York_____________

Thomas B. York

383

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA

PLAINTIFF

v.

Case No. 4:09CV00033 JLH

STATE OF ARKANSAS; MIKE BEEBE, Governor of the State of Arkansas, in his official capacity only; JOHN M. SELIG, Director of the Arkansas Department of Human Services, in his official capacity only; JAMES C. GREEN, Ph.D., Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only; and CALVIN PRICE, Superintendent of the Conway Human Development Center, in his official capacity only

DEFENDANTS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Most lawsuits are brought by persons who believe that their rights have been violated. Not

this one. The Civil Rights Division of the Department of Justice brings this action on behalf of the

United States of Am erica against the State of Arkansas and four st ate officials in their official

capacities alleging that practices at Conway Human Development Center violate the rights of its

residents guaranteed by the Fourteenth Amendment, the Americans with Disabilities Act, and the

Individuals with Disabilities Education Act. All or nearly all of those residents have parents or

guardians who have the powerto assert the legal rights of their children or wards. Those parents and

guardians, so far as the record shows, oppose th e claims of the United States. Thus, the United

States is in the odd position ofasserting that certain persons’ rights have been and are being violated

while those persons—through their parents and guardians—disagree.

For its first claim for relief, the plaintiff alleges that patterns and practices at Conway Human

Development Center violate the constitutional rights of its residents by failing to provide reasonably

safe conditions; by failing to provide the level of habilitation and training necessary to protect the

residents’ liberty interests and to ensure their rights and freedom; and by substantially departing from generally accepted standards of care in the medical, psychological, and other services provided by the Center. Cf. Youngberg v. Romeo, 457 U.S. 307, 322, 102 S. Ct. 2452, 2461, 73 L. Ed. 2d 28 (1982) (finding that individuals i nvoluntarily committed to a state institution must be assured adequate or reasonable trainingto ensure safetyand freedom from undue restraint). Over the course of a six-week bench trial, the plaintiff examined witness after witness and introduced exhibit after exhibit in an effort to prove that many policies and practicesof Conway Human Development Center substantially depart from generally accepted professional standards. See id. at 323, 102 S. Ct. at 2462 (recognizing that decisions of professionals are considered valid unl ess they constitute a substantial departure from accepted professional judgment, practice, or standards). The plaintiff makes allegations of abuse and neglect; takes issue with the Center’s use of restraints, psychological services, and medical services; and argues that the procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers, and other injuries are subpar. Finally, the plaintiff alleges that, because of the Center’s deficiencies, residents die prematurely. These allegations certainly are serious. They are not, however, supported by the weight of the evidence presented at trial.
For its second claim for relief, the plaintiff alleges that Conway Human Development Center violates the integration mandate of the Americans with Disabilities Act. Under the Act, a public entity must administer services, programs, and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. Olmstead v. Zimring, 527 U.S. 581, 591-92, 119 S. Ct. 2176, 2183, 144 L. Ed. 2d 540 (1999). In the context of this case, the terms “restrictive” and “integrated” refer to the level of interaction with nondisabled persons. An integrated setting is a “setting that enables individuals with disabilities to interact with nondisabled
2

persons to the fullest extent possible,” while a restrictive setting is one in which disabled persons have less interaction with nondisabled persons. See 28 C.F.R. pt. 35, app. B (Mar. 15, 2011). The plaintiff alleges that Conway Human Development Center is not the most inte grated setting appropriate for many of its resi dents; that the Center’s employ ees fail to provide pare nts and guardians with adequate information about other services thatthe plaintiff considers more integrated; and that the Center’s staff does not exercise professional judgment in de termining the most integrated setting appropriate for residents. The weight of the evidence, however, indicates otherwise. The plaintiff has not met its burden under the Americans with Disabilities Act.
For its third claim for relief, the plaintiff alleges that Conway Human Development Center violates the rights of children at the Center under the Individuals with Disability Education Act by failing to provide them with free appropriate public education in the least restrictive environment. See 20 U.S.C. § 1412(a) (2006). The plaintiff offers evidence showing that children at the Center do not spend enough time in school; that special education teachers at the Center are not trained on the most advanced teaching methods and tools; that the education plans of the students are inadequate; and that the ratio of teachers to students does not meet state requirements. While the evidence supports the plainti ff’s allegation that Conway Human Deve lopment Center does not provide free appropriate public education, the evidence also establishes that the Center has submitted a corrective action plan to the Arkansas Depart ment of Educat ion, which is the state agency responsible for supervising special education programs and monitoring their compliance. At the time of trial, the Department had yet to determine whether the corrective measures proposed in the plan would bring Conway Human Development Center into full compliance with the Individuals with Disabilities Education Act.
3

The Court conducted its bench trial from September 8, 2010, through October 15, 2010. At
the conclusion of the trial, the parties requested that the filing period for post-trial briefs be delayed
until completion of the official transcripts. The transcripts have been prepared, and briefs have been
filed. Having received all of the evidence, the Court makes the following specific findings and
conclusions.
I. FINDINGS OF FACT
A. INTRODUCTORY FINDINGS OF FACT
Conway Human Development Center is a residential facility providing a variety of services
for persons with developmental disabilities. It is one of six human development centers operated
by the Division of Developmental Disability Services of the Arkansas Department of Human
Services. Tr. 749-50, 764 (J. Green). The six human development centers have a total capacity of
1100 persons. Tr. 4332 (T. Kastner). One of thesix, Alexander Human Development Center, was
in the process of closing at the time of trial. Tr. 751 (J. Green). Alexander Human Development
Center had 109 residents. Tr. 4332 (T. Kastner).
Conway Human Development Center is certified by the Centers for Medicare and Medicaid Services as an intermediate care facility for the mentally retarded,1 Tr. 4044 (T. Kastner), which means that it is elig ible for and r eceives federal funds through Medicaid.2 It is licensed by the
1 See 42 C.F.R. § 440.150 and 42 C.F.R. §§ 483.400-483.480 for the definition of and regulations pertaining to an intermediate care facility for the mentally retarded.
2 It is another oddity of this case that the institution at issue is funded and regulated by one department of the executive branch of the federal government while another department of the executive branch contends that its conditions are so deplorable as to violate rights guaranteed to the institution’s residents by the United States Constitution. More pointedly, the United States simultaneously funds Conway Human Development Center, certifies it as eligible for those federal funds, and contends that the conditions there are so deplorable as to be unconstitutional.
4

Arkansas Office of Long-Term Care3 for 539 beds. Tr. 533 (A. Richardson); Tr. 845 (A. Green);
Pl.’s Ex. 229. Conway Human Development Center provides medical care, dental care, physical
therapy, speech therapy , occupational therapy , special education, hab ilitation, and recreational
services. Tr. 535, 642 (A. Richardson). It employs approximately 1200 persons on a 409-acre
campus that includes thirty -two cottages, school buildings, a ch apel, a gymnasium, a pool, an
infirmary, and other building s. Tr. 533 (A. Ri chardson); Pl.’s Ex . 229. The Center serves
individuals with a wide range of disabilities through its various programs and has a number of
procedures and policies in place to ensure that it is meeting the needs of its residents effectively.
1. The Residents of Conway Human Development Center
Residents of Conway Human Development Center are impaired in a number of ways. The large majority of thoseresidents are classified asprofoundly or severely mentally retarded.4 Tr. 5810
(K. Walsh). Most of them also have psy chiatric disorders as well as additional impairments or
disorders. On July 31, 2009, 509 persons ranging in age from seven to seventy-two resided at the
Center. Pl.’s Ex. 229. Of those 509 residents, 399 were classified as profoundly mentally retarded;
77 were classified as severely mentally retarded; 25 were classified as moderately mentally retarded;
7 were classified as mildly mentally retarded; and 1 resident, pursuant to a respite, or short-term,
admission, was described as functioning at a borderline level. Pl.’s Ex . 229. F ifty-two of the
3 The Office of Long-Term Care is a state agency that, among other things, regulates intermediate care facilities for the mentally retarded.
4 Mental retardation is significantly subaverage general intellectual functioning accompanied by significant limitations in adaptive functioning. Diagnostic and Statistical Manual of Mental Disorders 39-49 (4th ed. 2000 Text Revision). “Mild mental retardation” refers to an intellectual quotient level of 50-55 to approximately 70; “moderate mental retardation” refers to an intellectual quotient level of 35-40 to 50-55; “severe mental retardation” refers to an intellectual quotient level of 20-25 to 35-40; and “profound mental retardation” refers to an intellectual quotient level below 20 or 25. Id. at 42-44.
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residents had autism; 171 had ag gressive, destructive, or self-i njurious behaviors; 319 had dual diagnoses (i.e., developmental disabilities and psychiatric diagnoses); 137 had fragile health; 307 had seizure disorders; 229 had cerebral palsy; 190 were non-ambulatory; 35 were hearingimpaired; 21 were deaf; 129 were vision impaired; 36 were blind; 277 of the residents required devices (e.g., wheelchairs, braces, or orthotic devices) to maintain body alignment; and 484 required modified diets. Pl.’s Ex. 229.
Conway Human Development Center is the onyl human development center operatedby the State of Arkansas that provides services to children. Tr. 764-66 (J. Green). In July of 2009, fiftytwo of the residents at the Center were school-aged children, Pl.’s Ex. 229, and at the time of trial, forty-eight of the residents were under the ag e of twenty-one, Tr. 846 (A. Green). M any of these children came to ConwayHuman Development Center as a result of maladaptive behaviors.5 Tr. 846 (A. Green); Tr. 2272 (S. Thibadeau). They previously lived at home, in foster care, in group homes, or in other such settings and may have attended public schools. Unfortunately, their maladaptive behaviors proved to be more than their caregivers and school officials could manage, so their parents or guardians sought to have them admitted to Conway Human Development Center. Tr. 2272 (S. Thibadeau); Tr. 3263-65 (M. Catron);Tr. 4055-57 (T. Kastner); Tr. 5145-49 (D. Nye); Tr. 5607-08 (B. Gale); Tr. 6212 (L . Kraus); Tr. 6616-18 (K. Pries t); Tr. 6724-25 (B. Brewer). Some of the children are in the custody of the Division of Child and Family Services due to neglect, physical maltreatment, or sexual maltreatment. Tr. 6724 (B. Brewer).
5 Here and in many places in this opinion, the Court uses the terminology commonly used by witnesses at trial.
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2. Admission to and Discharge from Conway Human Development Center
Admission to Conway Human Development Center occurs only after certain requirements
are met. Generally, a parent or guardian applies for admission to the Center on behalf of the child or ward and retains the right to withdraw the child or ward.6 Before a person can be admitted to
Conway Human Development Center, a determination must be made that the Center is the least
restrictive, most integrated environment in which the services needed bythat person can be provided
appropriately. Tr. 4310 (T. Kastner); Tr. 5145 (D. Nye); Defs.’ Ex. 912, Division of Developmental
Disability Services Policy No. 1086 § II(d)1.
In the twenty-six month period between January of 2008 and February of 2010, thirty-seven
persons were admitted to ConwayHuman Development Center. Tr. 4335 (T. Kastner). Also during
that time period, forty-four persons entered the Center for respite, or short-term, care rather than
admission. Tr. 4336 (T. Kastner) . Over a fort y-six month period—between J uly 1, 2006, and
March 17, 2010—seventy-two persons were discharged from Conway Human Development Center,
which represents an average of almost two discharges per month. Tr. 5981 (K. Walsh). From July
of 2009 through mid-October of 2010, six residents of the Center were discharged, as were fifteen
persons who had entered for respite care. Tr. 6768 (A. Green). At the time of trial, six ty-five
persons were on a waiting list for admission to Conway Human Development Center. Tr. 647
6 The Division of Developmental Disability Services has procedures for court-ordered admissions, but no evidence was presented that any resident of Conway Human Development Center has been admitted pursuant to court order. If the Division of Developmental Disability Services or the superintendent of Conway Human Development Center determines that voluntary discharge presents a danger to the individual or others, either may initiate legal proceedings. No evidence was presented that legal proceedings have been instituted to prevent a parent or guardian from removing a child or ward. Cf. Porter v. Knickrehm, 457 F.3d 794, 798-99 (8th Cir. 2006) (holding that a guardian’s decision to admit the ward, a moderately retarded adult, to a human development center in Arkansas was a “voluntary” admission).
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(A. Richardson); Tr. 4310 (T. Kastner); Tr. 5980 (K. Walsh). 3. Parents and Guardians of Residents of Conway Human Development Center Many, if not most, of the parents and g uardians of the residents of Conway Human
Development Center keep themselves informed regarding the Center. Theyhave formed the Conway Human Development CenterParents’ Association, which is comprised of parents and guardians who are concerned about the Center, itsresidents, its staff, and what ishappening in human development centers around the state. Tr. 50 55 (L. Taylor). The association meets quarterly . Tr. 5056 (L. Taylor). Many of the same parents and guardians are also members of a statewide organization, Families and Friends of Care Facility Residents, which is an umbrella group for all of the parent and guardian groups of the human development centers in the State of Arkansas. Some of the members of the statewide group have developmentally disabled family members who receive services in the community rather than in facilities like ConwayHuman Development Center. Tr. 5058 (L. Taylor). Together, the two parent organizations filed an amicus brief in opposition to the plaintiff’s claims in this action.
According to the individual program plans and other evidence introduced at trial, the parents and guardians of residents of Conway Human Development Center are overwhelmingly satisfied with the services there and believe that the Center is the least restrictive, most integrated placement appropriate for their children and wards. Tr. 482 (S. Murphy); Tr. 4328-29 (T. Kastner). Ninetyseven percent of the parents and guardians of residents at Conway Human Development Center who responded to a survey stated that th ey were satisfied or very satisfied with the services that their children and wards receive. Tr. 4328 (T. Kastner); Tr. 5956-57 (K. Walsh). Six persons who were parents or guardians of residents of Conway Human Development Center testified at trial. Two of
8

the six were nurses. All six of them testified that they were pleased with the services offered by Conway Human Development Center. Tr. 1502 (A. Fortney); Tr. 3249 (E. Stoddard); Tr. 3273-74 (M. Catron); Tr. 5069-70 (L. Taylor); Tr. 6832-34 (M. Black); Tr. 6850-52 (B. Landen). None of the six had any criticism of Conway Human Development Center.
4. Teams at Conway Human Development Center The residents of Conway Human Development Center are divided into five “teams,” which are groups of residents assigned to a designated area with a specific group of employees responsible for their training and care. Defs.’ Ex. 910, Conway Human Development Center Policy No. II-A-1. The teams are, in order from the highest functioning residents to the residents with the g reatest developmental disabilities, as follows: the Habilitation and Training Team, the Sheltered Living Team, the Individual Assistance Team, the Intensive Training Team, and the Total Care Team. The Habilitation and Training Team consists of the residents at Conway Human Development Center who function at the highest intellectual level of those admitted to the facility. Their level of intellectual function ranges from the higher profound level of intellectual disability to the moderate level of intellectual disability, with some school-aged children functioning at the mild level. The majority of them are placed at Conway Human Development Center because of maladaptive behaviors. Tr. 1663 (C. Price); Tr. 6723-26 (B. Brewer). The Sheltered Living Team consists of resi dents who function at the profound to mild or moderate level of intellectual disability. A la rge number of them have seizure disorders, issues related to swallowing, and maladaptive behaviors. Tr. 1663 (C. Price). The Individual Assistance Team consists ofresidents who function in the lower profound to upper profound level of inte llectual disability. Many of them have maladapti ve behaviors and
9

seizure disorders. They have low self-help skills and require manipulation in almost everything that they do. Tr. 1663-64 (C. Price).
The Intensive Training Team consists of residents in the lower profound level of intellectual disability. They have many maladaptive behaviors and seizure disorders. Their skill level is below that of the residents on the Individual Assistance Team. They require total assistance with self-help and daily living skills. Tr. 1664 (C. Price).
The Total Care Team consists of residents who are in the profound level of intellectual disability and have severe medical conditions. They are the most medically fragile residents at Conway Human Development Center. They typically are non-ambulatory. Many of them have major swallowing issues, and most of them are fed by a tube. They require total assistance with everything that they do. Tr. 1664 (C. Price).
Each of the five teams has a manager who is known as the team leader. The team leader is responsible for reviewing, monitoring, and approving programs and supervising the staff that is responsible for the residents on that team. Tr. 6722-23 (B. Brewer); Pl.’s Ex. 279.
5. Interdisciplinary Teams and Individual Program Plans Each resident at Conway Human Development Center is served by an interdisciplinary team (which should not be confused with the teams into which residents a re placed). A resident’s interdisciplinary team consists of persons from various disciplines who pr ovide services to that resident. Each i nterdisciplinary team includes a prog ram specialist7 who is a qualified men tal
7 The current title for this position is “program specialist,” but the position was formerly known as “social service worker” or “social worker.” Conway Human Development Center employs twelve program specialists.
10

retardation professional;8 the resident’s parent or guardian; a member of the direct care staff; the psychological examiner assigned to that resident; and other professionals who provide service for that particular resident, such as a physical therapist, an occupational therapist, a speech language pathologist, or a primary care physician. Tr. 636 (A. Richardson); Tr. 4860, 4901-03 (S. Murphy); Tr. 5017 (G. Miller).
Each resident’s interdisciplinary team prepares an individual program plan for that resident describing the resident’s needs as well as a program for addressing those needs.9 Defs.’ Ex. 910, Conway Human Development Cent er Policy No. II-D-1. An i ndividual program plan includes information submitted by the various professionals and direct care staff who provide services to that resident. The p lan includes information about the resident’s social history, psychological assessment, medical care, dental care, medications, auditory assessment, nutritional status, dysphagia assessment, speech assessm ent, physical therapy assessment, occupational therapy assessment, special education, residential assessment, recreational interests, and other assessments as specified by the interdisciplinary team. Tr. 4901-07 (S. Murphy); Defs.’ Ex. SM-5; Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-1 at 5. Each individual prog ram plan includes a transition plan and takes into cons ideration the resident’s rights, the strengths of the resident, the needs of the resident, the problems and liabilities of the resident, and the resident’s personal, long-
8 A qualified mental retardation professional is a person who has at least one year of experience working directly with persons with mental retardation or other developmental disabilities and is either a doctor of medicine or osteopathy, a registered nurse, or a person who holds at least a bachelor’s degree in one of several fields identified in the applicable regulation, 42 C.F.R. § 483.430. Those fields include psychology, social work, pathology, special education, and rehabilitation counseling.
9 A large number of individual program plans were introduced into evidence. See Pl.’s Exs. 101-1 through 206.
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range goals. Pl.’s Ex. 101-1 through 206. Each resident’s interdisciplinary team meets at least annua lly to review the resident’s
individual program plan. In addition to the annual meeting, the interdisciplinary team may meet as needed for what ConwayHuman Development Center calls “special staffing.” Tr. 4860, 4866, 486970 (S. Murphy). Special staffing occurs when a resident has sig nificant maladaptive behaviors, medical issues, or other indications that some aspect of the individual prog ram plan shou ld be reconsidered.
6. Behavior Plans In addition to their individual prog ram plans, residents at Conway Human Development Center who have maladaptive behaviors usuallyhave a safety plan, a positive behavior support plan, and a separate description of strategies to be used by staff in dealing with them.10 A safety plan is a plan for restraints, restrictions, or both. Tr. 5795 (K. Walsh); Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-16. A positive behavior support plan is a plan to identify , develop, and support positive behavior. Tr. 5795-96 (K. Walsh); Tr. 6562 (K. Priest). Strategies direct staff as to how to best work with the residents. Tr. 5795-96 (K. W alsh); Tr. 6561-62 (K. Priest); Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-16. In September of 2009, 99 residents of Conway Human Development Center had safety plans, 33 had pos itive behavior support plans, and 295 had strategies. Tr. 5803 (K. Walsh). 7. Human Rights Committees Conway Human Development Center has five human rights committees, one for each team,
10 Conway Human Development Center policy considers behaviors as “maladaptive” “if they present a danger to self or others, to property, or interfere with habilitation and inclusion in the community.” Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-9.
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which review and approve specific treatment a nd behavioral interventions. Tr. 5010 (G. Miller). The human rights committees are c omprised of a chai rperson; a vi ce chairperson; center representatives; consumer representatives; and non-affiliated, community representatives. Tr. 5009 (G. Miller); Tr. 5934 (K. Walsh); Defs.’ Ex. 910, Conway Human Development Center PolicyNo. IF-4. Conway Human Development Center psychological examiners are assigned to each of t he human rights committees in a nonvoting role to provide information and consultation to the voting committee members. Tr. 5009 (G. Miller); Tr. 5934 (K. Walsh).
The human rights committees review issues of residents’ rights (such as the right to privacy), medical diagnoses, medications, behavior plans, safety plans, and individual program plans. They also review and decide whether to approve behavior plans t hat involve the use of restrictive or intrusive procedures. Defs.’ Ex. 910, Conway Human Development Center Policy No. I-F-4. Prior to submission to a human ri ghts committee, be havior plans are developed as follows: the interdisciplinary team establishes an objective and a plan; the psychological examiner formulates the behavior intervention plan; and the team leader, chief of psychology, and primary care physician review the plan. The n, written and informed consent is obta ined from the parent or guardian. Tr. 5849 (K. Walsh). I f the human rights committee does not approve a behavior plan, the interdisciplinary team must co rrect any impediment to approva l that is identified. Tr. 5850 (K. Walsh). If the human rights committee approves a behavior plan, it issent to the superintendent for his approval, and then staff and other C onway Human Development Center personnel are instructed on how to implement the plan. Tr. 5850 (K. Walsh). The psychological examiners train the staff as to how to implement the plan . Tr. 6589-90, 6599-6600 (K. Priest); Tr. 6677- 78 (E. Glenn); Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-16 at 4, 11, 14.
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8. Incident Review Committees In addition to the human rights committees, Conway Human Development Cent er has another group of oversight committees called “incident review committees.” Each of the five teams has an incident review committee, and there is also a central incident review committee. Tr. 5936 (K. Walsh). The team incident review committees meet Monday through Friday, Tr. 5014-15 (G. Miller); Tr. 5936 (K. Walsh), while the central incident review committee meets monthly, Tr. 5936 (K. Walsh); Pl.’s Ex. GM-1. The i ncident review committees review reports of injuries, deaths, disruption of services to cl ients, patterns a nd trends, safety concerns, property damage, and workman’s compensation-related issues. Pl.’s Ex. GM-1; Defs.’ Ex . 910, Conway Human Development Center Policy No. I-F-15. Conway Human Development Center is required to report to a State of Arkansas database incidents of maltreatment of residents by staff, fractures, cuts and lacerations that require stitches, bruises that require x-rays, client-to-client bites if there is a skin break or if an antibiotic is required, swellings, sprains if there are x-rays, abrasions and burns that require the application of medication or ointment, medication errors that require medical treatment, and certain other types of incidents. Tr. 5938-39, 5943 (K. Walsh); Defs.’ Ex. 910, Conway Human Development Center PolicyNo. I-E12; Defs.’ Ex. 911, Arkansas Department of Human Services Policy Manual §§ 1090et seq.; Defs.’ Ex. 912, Division of Developmental Disability Services Policy No. 1027. Minor bumps and bruises are not reportable. Tr. 5938 (K. Walsh). The incident review committees review the incidents that must be reported to the state database. Tr. 5936-37 (K. Walsh). The central incident review committee at Conway Human Development Center performs a second review of incidents thatwere reviewed by the team incident review committees. The central
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committee also provides oversight review for identifying trends and policy directions. It produces a quarterly incident report summary, which is a statistical report showing all incidents that occurred in the prior quarter. Tr. 5937-38 (K. Walsh).
9. Physical Therapy Conway Human Development Center employs a staff of physical therapists who are licensed by the State of Arkansas, are assisted by physical therapy aides and assistants, and perform a number of functions at the Center. Tr. 5251-52 (L. Hancock). The physical therapy department performs assessments of new resident s upon admission and reassesses th em periodically during their residency. Tr. 5251 (L. Hancock). The department also provides wheelchair modifications, power wheelchair training, and wound care. In addition, the department hosts an orthopedic clinic each month. Tr. 5251 (L. Hancock). The department trains direct care staff in proper positioning and lifting and performs spot checks t o determine whether direct care st aff are com plying with the training. Tr. 5254-55 (L . Hancock). The phy sical therapy department also prepares positioning programs for each resident in need ofpositioning services. Tr. 5263-64 (L. Hancock). Among other things, the positioningservices are designed to avoid decubitus ulcers, also known as pressure ulcers, and to help prevent choking during mealtime. Tr. 5277-81 (L. Hancock). Conway Human Development Center operates a physical therapy orthotics shop at which it constructs custom-made wheelchairs and other orthotics devices for the residents. Each device is form-fitted to the resident who will use it. Tr.5265-69 (L. Hancock). Veryfew residential facilities have on-site orthotics shops. Tr. 3469 (M. Schmeler). A residentat Conway Human Development Center who needs a custom-made wheelchair can have one constructed and properly fitted to that resident’s specific needs withinapproximately two days. Tr. 5269 (L. Hancock). MarkR. Schmeler,
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Ph.D., an expert in occupational therapy specializing in assistive technology, described the turnaround rate at ConwayHuman Development Center’s orthotics shopas “lightning speed.” Tr. 347476 (M. Schmeler). W hen such a cust om-made wheelchair or ot her device is ordered from a commercial vendor, the process may take four to six months. Tr. 5271 (L. Hancock). B. FINDINGS OF FACT REGARDING ALLEGED VIOLATIONS OF THE
FOURTEENTH AMENDMENT The plaintiff’s first claim fo r relief is that many of the conditions at Conway Human Development Center violate the constitutional rights of the Center’s residents. Specifically, the plaintiff alleges that Conway Human Development Center’s efforts tokeep its residents safe and free from undue restraint substantially depart from generally accepted practices. The greater weight of the evidence is to the contrary. 1. Allegations that a P attern and P ractice of Abuse and N eglect and a
“Culture Of Silence” Exist at Conway Human Development Center The plaintiff alleges that Conway Human Development Center has a pattern and practice of abusing and neglecting its residents and that a “culture of silence” ex ists permitting abuse and neglect. That allegation is contrary to the greater weight of the evidence. Carla Jo Osgood, called as an ex pert witness for the plaintiff, provided unconvincing testimony that abuse and neglect of residents is rampant at Conway Human Development Center and that a “culture of silence” prevails such that employees over time become reticent to report abuse and neglect. Osgood had no formal education in any field relevant to her testimony ,11 nor is it
11 Osgood has a bachelor’s degree in political science. She has taken graduate courses at the Cincinnati Bible Seminary and also has studied pastoral counseling. Tr. 41 (C. Osgood). Her curriculum vitae provides no information about her education, thus tacitly admitting that she has no formal education in the field of her purported expertise. Pl.’s Ex. 1-1.
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evident that she has any experience that would qualify her to give expert testimony under Rule 702 of the Federal Rules of Evidence. See Tr. 37-41, 204-12 (C. Osgood); Pl.’s Ex. 1-1.
In her testimony , Osgood made mention of “g enerally accepted standards” but did not identify any source where such standards could be found other than the reg ulations that govern intermediate care facilities for the mentally retarded, which she regarded as outdated. Tr. 279-80 (C. Osgood). She testified that “the standards of practice are fluid over time and could have changed at any time in the last four months, twelve months, what have you.” Tr. 222 (C. Osgood). She did not refer to texts, journals, or other sources that would reflectshared knowledge among people who would qualify as ex perts in a particular field. Her testimony did not seem to connect to any identifiable body of knowledg e or any identifiable discipline from which g enerally accepted standards might be ascertained. She stated that she had toured approximately thirty facilities in fifteen states, but she neither identified the facilities nor gave any description of them from which the Court could determine whether those facilities were comparable to Conway Human Development Center. She also provided no quantitative analysis comparing rates of abuse and neglect at Conway Human Development Center to rates at similar f acilities or to any benchmarks. Tr. 269-72 (C. Osgood). Osgood leaped to the conclusion that a “culture of silence” exists at Conway Human Development Center based on t he fact that, in a few instances, the staff member reporting maltreatment had worked at the facility less than six months a nd based on the fact the Center disciplines employees who fail to report maltreatment immediately, as the Center’s policy requires. Tr. 156-61, 168, 181, 183 (C. Osgood).
Even disregarding the issues relating to Osgood’s credibility, her testimony is contradicted by the greater weight of the evidence, which demonstrates that no pattern and practice of abuse and
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neglect exists at Conway Human Development Center. To begin with, Conway Human Development Center has specific policies in place designed
to protect its residents from maltreatment. De fs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10. ConwayHuman Development Center policy defines “maltreatment” as including but not limited to “phy sical, verbal, psy chological, or sex ual abuse, neg lect, exploitation, misappropriation of property, and violation of rights of individuals requiring services.” Id. § I.4. Potential employees are screened for a history of maltreatment, and employees are trained on issues relating to maltreatment. Tr. 4872 (S. Murphy); Tr. 4990-94 (G. Miller); Tr. 6534-38 (J. Buck); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10 §§ A.1 and A.2. Conway Human Development Center polic y requires that employees make an i mmediate report of any instance of maltreatment to the administration.Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10 § B. The Center enforces this policy. Tr. 158-59, 179 (C. Osgood); Tr. 4872-73 (S. Murphy).
Conway Human Development Center also adheres to the Arkansas reporting laws, which require that state officials be notified of instances of abuse. If the victim of the alleged abuse is a child, the child abuse hotline12 is called, and if the victim of the alleged abuse is an adult, the adult abuse hotline is called.13 Tr. 4995 (G. Miller); Tr. 6873 (C. Price). The police are notified, as are the Office of Long-Term Care and the Arkansas Attorney General’s Office. Tr. 4995 (G. Miller); Tr. 6873 (C. Price).
In addition, Conway Human Development Center has procedures in place for reporting and
12 See Child Maltreatment Act, Ark. Code Ann. §§ 12-18-101 to 12-18-1108. 13 See Adult and Long-Term Care Facility Resident Maltreatment Act, Ark. Code Ann. §§ 12-12-1701 to 12-12-1721.
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investigating allegations of maltreatment. Ma ltreatment incidents are reported to the shift coordinator if they occur after hours or to the team leader if they occur during business hours. Tr. 4994 (G. Miller). When a report is made, the resident who suffered the alleged maltreatment is checked medically, the staff member is suspended, and an investigation is conducted by a person whose sole job is to investigate maltreatment allegations. Tr. 6873 (C. Price). At the time of trial, the investigator at Conway Human Development Center was an attorney. Tr. 4992 (G.Miller). The investigations are thorough and prompt. Tr. 5944-46 (K. Walsh); Tr. 6740 (B. Brewer). After the investigative report is completed, it is forwarded to the superintendent’s office for executive review. Tr. 4996 (G. Miller); Tr. 6874 (C. Price). The superintendent makes the final determination of whether credible evidence supports the allegation of maltreatment and forwards that determination to the team, along with written directives for the team to carry out. Tr. 4996 (G. Miller); Tr. 6874 (C. Price). If credible evidence supports the charge of maltreatment, the employee responsible for the maltreatment is immediately terminated. Tr. 232 (C. Osg ood); Tr. 6740-42 (B . Brewer); Tr. 6875 (C. Price); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10 § F.
The annualized rate of subs tantiated instances of maltr eatment at Conway Human Development Center is .054, which is comparableto published rates for oht er facilities. Tr. 5948-49 (K. Walsh). This fact supports the finding that there is no pattern and practice of abuse and neglect at the Center.
Moreover, the testimony of parents and gu ardians of re sidents at Conway Human Development Center also supports the finding that there is no pattern and practice of abuse and neglect at the Center. W hen a resident is involved in an incident of aggression, maltreatment, or injury, the Center notifies the parent or g uardian unless the parent or g uardian has speci fically
19

directed otherwise. Tr. 3236 (E. Stoddard);Tr. 3269, 3282 (M. Catron); Tr. 4868-69 (S. Murphy); Tr. 5033-34 (G. Miller); Tr. 5059(L. Taylor). Parents and guardians are permitted to visitthe Center unannounced. Tr. 3232 (E. Stoddard); Tr. 3270 (M. Caotrn); Tr. 5059 (L. Taylor). Even though they are permitted to visit unannounced, no parent or guardian of any resident, past or present, testified that he or she had reason to believe that C onway Human Development Center has a pattern or practice of permitting residents to be abused or neglected.
To the contrary, parents and guardians testified that the staff at Conway Human Development Center genuinely care about the residents and immediately report any issues that arise.
The first witness called for the defense was Earline Stoddard, whose forty-four-year-old son is a resident of Conway Human Development Center. Tr. 3230 (E. Stoddard). At the time of trial, Ms. Stoddard was an adjunct instructor for the Schoool f Nursing at Baptist Health. She has worked in the nursing field for more than forty years. Tr. 3230 (E. Stoddard). Ms. Stoddard often makes unannounced visits to the Center to visit her son,and she has never seen anything that would cause her to be alarmed or upset. “I can tell y ou when he was in a school in Kansas, we were never allowed to go back to the cottage to see him. They always brought him to us. That’s one thing I like about Conway [Human Development Center], is you can go see your child any time you want to.” Tr. 3233 (E. Stoddard). Ms. Stoddard testified, “[I]t’s so important to me to know that the people who are caring for [my son] love him and will take care of him and are held responsible for it.” Tr. 3247 (E. Stoddard).
Melissa Catron’s son also is a resident of Conway Human Development Center. He was nineteen years old at the time oftrial and had been a resident for more than four years. Tr. 3261-62 (M. Catron). Ms. Catron is a registered nurse. She testified that the Center works with her son on
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everything she could possibly want. She believes that he is loved there. “I don’t feel like anybody is there against their will to work with him. I’ve just not seen that. Everyone I’ve seen there that works with him wants to be there, that’s what theywant to do, and theyseem to care about the kids. I’m thrilled.” Tr. 3274 (M. Catron).
The defendants also called as a witness Larry Taylor, who is the guardian of his fifty-eightyear-old younger sister. “Tests showthat [my sister] functions at about two years and nine months.” She was fourteen years old when she was admitted. Tr. 5050 (L. Taylor). Mr. Taylor has lunch with his sister on a weekly basis. “I can rely on them to call me any time there’s an injury. And that means a bruise of 2 inches, a scratch, a fall from bed.” Mr. Taylor could not recall a time when he noticed that his sister had suffered an injury that he did not already know about. Tr. 5059 (L. Taylor).
Michael Black’s fourteen-year-old son was admitted to Conway Human Development Center when he was eight or nine. Tr. 6824 (M. Black). “They call if he gets a bruise or a bump or has an incident. They call and let us know that he fell and scraped his knee . . . . They call and tell us that he’s fine, you know, we put a Band-Aid on it, we gave him a hug and a kiss, and he’s back to being a normal little child.” Tr. 6833 (M. Black). “All the workers there . . . most of them that we know of have children of their own. . . . We’re happy that he’s in anenvironment where we know he’s safe and he’s going to get good sound medical care while he is there.” Tr. 6833-34 (M. Black).
Barry Landen is the guardian of his brother, whois fifty-five years old andhas been a resident of Conway Human Development Center for more than fortyyears. Tr. 6842(B. Landen). Landen’s brother was born blind.
[My brother] is an extraordinarily fragile individual. His balance, as I said, it’s just terrible, and it’s veryeasy for him to falland hurt himself. . . . he doesn’t understand
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the concept of putting your fingers over the door when you slam will cause you a huge amount of injury. So the factthat nothing serious has happened to [my brother] in 40 years of living there is extraordinarily significant to me. Tr. 6851 (B. Landon). The testimony that staff members at Conway Human Development Center genuinely love and care for the residents is inconsistent with the allegation that there is a pattern and practice of abuse and neglect of residents at the Center. Just as no parent or g uardian testified to facts that would indicate a pattern or practice of abuse and neglect at Conway Human Development Center, similarly, no past or present employee offered any testimony indicating that such a pattern or practice of abuse or neglect exists. If a pattern or practice of abuse or neglect exists at Conway Human Development Center, some past or present employee would know of it and wouldhave testified about it. Tr. 4873-74 (S. Murphy). If a “culture of silence” prevails such that present employees are disinclined to report abuse and neglect, some former employee would know of it and would have testified about it. No past or present employee testified that Conway Human Development Center has or has had a pattern or practice of permitting residents to be abused or neglected. No past or present employee testified that a “culture of silence” exists at Conway Human Development Center or that employees of the Center are reluctant to report abuse or neglect. In fact, Johnny Lee Matson, Ph.D., who was called by the plaintiff as an expert witness in the field of psychology, testified that the psychology staff at Conway Human Development Center consists of “very nice people” who “were try ing very hard” and “doing the best they could.” Tr. 1072 (J. Matson). Even though Dr. Matson believes that the technical skills of the psychology staff at the Center are deficient, he did not hesitate to say that they are good people who are doing
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their best, an observation that cannot be reconciled with the allegation that a pattern of abuse and
neglect prevails.
Other witnesses described the staff at Conway Human Development Center as consisting of
people who genuinely care for the residents and exhibit a loving attitude toward them. For example,
Louis Kraus, M.D., who testified as an expert in child psychiatry, described the cottage personnel
at Conway Human Development Center as follows:
They were amazing. . . . I’ve seen a lot of different facilities over my professional career. Most of the cottage staff had been t here for years, and they were not just there, in my opinion, because it was a job. They truly loved taking care of these kids. They would coddle them, theywould hold them. There was a warmth withthe staff that I observed during the day and early evening shifts, which I felt was very impressive. They also, I think it’s important, they had an understanding of the kids. Like, for example, one child that we talkedabout, TM, that had the orchiectomy, that staff really knew this child. They knew when people came up to him too quickly, that he’ll get anxious. They knew that when he’s col d, he shakes, and he likes it when it’s warmer out. They knew thing s about this child. And in each of the cottages and dorms, that’s what you found. That’s something refreshing, as opposed to people looking at their watches for the end of their shift.
Tr. 6225-26 (L. Kraus). Derek Nye, Ph.D., an expert in special education, testified:
I’m from New Jersey. There seems to be in my experience an edginess that exists all along the shoreline from Boston to Baltimore. And I see that edginess sometimes in our field, and it disappoints me on the east coast where staff have perhaps lost their focus as to why they are doing what they are doing. And Ihave seen it, quite frankly, in facilities I’ve worked at . . . . And I saw it in some of the developmental centers in New York and New Jersey specifically. And I had a fear that I would . . . see it here, too. Why not? And I was – pleasantly surprised is an understatement. I was overwhelmed by the caring attitude, by the compassion . . . and not just the special educators. People from the boardroom to the washroom, they place these individuals at the center of every thing. They understood that they were there because these individuals needed t heir assistance. A nd they never violated that trust. My experience is they didn’t violate that trust. And it was very impressive. And I saw that throughout in the classroom.
* * *
[T]here was a relationship, there was trust, there were students that were comfortable. Without being able to cite specifics, I believe certainly in my mind it’s a given that students who feel they are safe, they are comfortable, that they are loved, are going
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to have a greater capacity to learn and to love and to trust back. And Isaw that given. People may argue that’s an intangible and perhaps it is, but when you’ve taught and you’ve been involved in as manyplaces as I have in 36 years, you know it when you see it, and I saw it every day. Tr. 5120-21 (D. Nye). Even if some ofthose who testified believe that the technical skills of the staff at Conway Human Development Center are deficient—as Dr. Matson does—it is not plausible to say that employees at the Center genuinely care for the residents and exercise their best efforts to attend to the residents’ needs whiletolerating a pattern and practiceof abuse and neglect about which they remain silent. The greater weight of the evidence proves that no pattern and practice of abuse, neglect, or maltreatment of residents exists at Conway Human Development Center, and no “culture of silence” exists there. The evidence proves that Conway Human Development Center exercises reasonable care to prevent and to stop abuse, neglect, and maltreatment. 2. Allegations that Conw ay Human Development Center’s Use of
Restraints Violates Residents’ Rights Contrary to the plaintiff’s allegations, and for the reasons that follow, the Court also finds from the greater weight of the evidence that Conway Human Development Center’s use of restraints does not violate the constitutional rights of its residents. Residents of Conway Human Development Center engage in aggression toward others, selfinjurious behavior, tantrums, destruction of property, ingestion of non-edible objects, and the like, which can be dangerous to the resident engaging in the behavior as well as to other residents and staff or property. The Center sometimes uses mechanical restraints including papoose boards, restraint chairs, restraint jackets, mittens, and helmets to contain dangerous behavior. Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-12 at 2-3.
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If the use of restraints is to be a part of the prog ram for a resident at Conway Human
Development Center, the interdisciplinary team must prepare a safety plan and a positive behavior
support plan. Tr. 6652 (K. Priest). Pursuant to the Center’s written statement of residents’ rights,
mechanical restraints may be used when l ess restrictive interventions have failed and when
“absolutely necessary to prevent the individual from injury to himself/herself and to others.” Defs.’
Ex. 910, ConwayHuman Development Center PolicyNo. I-D-5 at 4. ConwayHuman Development
Center’s policy on the use of pl anned restraints provides, “An individual may require the use of
emergency or planned restraint . . . to contain behavior that is dangerous to self, others, or property.
Unless clinically contraindicated, the use of restraint is a last resort containment measure preceded
by less restrictive measures.” Defs.’ Ex. 910, Conway Human Development Center PolicyNo. II-D-
12 at 1. The policy also provides:
Containment Restraint: Orders for restraint are ti me limited and shall not exceed one hour and 50 m inutes for an adult or on e hour for a ch ild or adolescent. The individu al is immobilized until calm by an approved device or devices which prevent movement of the body or parts of the body and/or normal function, not to exceed 15 minutes without an extension approved and documented by the QMRP14/designee, preferably after face-to-face attention. Unless otherwise determined by the IDT,15 QMRP/designee, extensions will be obtained every 15 minutes until the individual is calm. The IDT should define what constitutes calm behavior for this individual when used in a behavior program. Unless determined clinically contraindicated by the QMRP/designee, should time in restraint reach 55 minutes, the individual must be released for five mi nutes for the opport unity for motion, liquid intake, or toileting. Should time restraint reach 1 hour and 50 minutes, the individual must be rel eased for at least 10 m inutes for t he previously listed activities. I f this 10- minute release is judg ed to be a danger to the individual and/others, additional staff should be called to ensure safety for all concerned. Constant supervision is required.
Id. at 3 (bold, italics, andunderlining in the original). The planned use of mechanical restraints must
14 Qualified Mental Retardation Professional.
15 Interdisciplinary Team.
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be reviewed and approved by the chief psychologist, the human rights committee, the primary care physician, the superintendent, and the parent or guardian. Tr. 6563-64 (K. Priest); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-D-5 at 7.
In addition to the use of mechanical restraints as a part of a safet y plan, Conway Human Development Center permits the use of mechanical restraints as an emergency measure to protect the resident or other residents from injury. The incident must be documented, and notice must be given to the interdisciplinary team, the child psychologist, the superintendent, the human rig hts committee, and others. An individual placed in a mechanical restraint must be monitored at least every fifteen minutes and must be g iven an opportunity for motion and ex ercise for at least five minutes during each hour. The unplanneduse of mechanical restraints must be reviewed bythe chief psychologist, the human rights committee, the primary care physician, the superintendent, and the parent or guardian. Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-13.
While the use of mechanical restraints is troubling, psychologists called by both the plaintiff and the defendants agreed that it is sometimes necessary to use mechanical restraints when providing care for persons with the disabilities and ps ychiatric disorders found at Conway Human Development Center. Tr. 1180, 1248-49 (J. Matson); Tr. 5565 (B. Gale); Tr. 5855-56 (K. Walsh). The regulations that govern intermediate care facilities for the mentally retarded provide for the use of restraints within certain limits and with specified controls. See 42 C.F.R. § 483.420(a)(6) (2011) (requiring facilities to ensure that residents are free from unnecessary restraints and are provided active treatment to reduce the need for physical restraints); 42 C.F.R. § 483.440(f)(3)(iii) (requiring a facility to have a committee consisting of staff, parents and guardians, and unaffiliated persons to review, monitor, and make suggestions regarding the use of physical restraints, among other things);
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42 C.F.R. § 483.450(b)(1)(iv)(B) (requiring a facility to adapt and implement policies and procedures
regarding the use of physical restraints for the management of inappropriate behavior); cf. 42 U.S.C.
§ 290ii (2006) (governing the use of restraints in facilities that receive federal funds). The policies
of Conway Human Development Center comply with these regulations. The Center’s use of
mechanical restraints is consistent with the regulations that govern intermediate care facilities for
the mentally retarded and is not a subst antial departure from generally accepted professional standards.16 Tr. 5565-72 (B. Gale); Tr. 5854-60, 5871 (K. Walsh).
Conway Human Development Cent er has made and is making a conscientious effort to
reduce the use of mechanical restraints. Implementation of a program of safety plans, positive
behavior support plans, andstrategies is part of that effort. From 2005 until the time of trial, the use
of mechanical restraints at the Center declined by sixty-nine percent. Tr. 5798, 5865 (K. Walsh).
In September of 2009, six ty-two residents had conting ent restraints in their plans, which is
approximately twelve percent of the residents. Tr. 5868 (K. Walsh). In other words, eighty-eight
percent had no restraints whatsoever in their plans.From July of 2008 through July of 2009, eighty-
eight percent of the incidents of restraints involved three individuals. Tr. 5868 (K. Walsh). At the
time of trial, restraints had beenremoved from the plans oftwo of those three individuals. Tr. 5869
16 Carla Jo Osgood testified for the plaintiff that the use of restraints at Conway Human Development Center substantially departs from generally accepted standards. As with her testimony regarding abuse and neglect, her testimony regarding the use of restraints was unpersuasive. Osgood performed no quantitative analysis comparing rates of injury at Conway Human Development Center to rates of injury at similar facilities or to any other benchmarks. Tr. 247-48 (C. Osgood). Nor did she provide any evidence that she was qualified to testify as an expert regarding restraint use. More credible testimony criticizing the Center’s use of restraints was offered by psychologists called as expert witnesses for the plaintiff, but for the reasons stated in this section and in the succeeding section of these findings, that testimony was insufficient to meet the plaintiff’s burden of proof.
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(K. Walsh). Based on the greater weight of the evidence, the Court finds that no pa ttern and practice
exists at Conway Human Development Center of using restraints without sufficient safeguards and supervision to ensure that the safety, welfare, and civil and human rights of residents are adequately protected; and the Court findsthat the use of restraints at the Center does not represent a substantial departure from generally accepted standards applicable to intermediate care facilities for the mentally retarded.
3. Allegations that Psychological Services at Conway Human Development Center Substantially Depart from Generally Accepted Standards
Although the plaintiff aleges that the psychological services at Conway Human Development Center substantially depart from generally accepted standards, that allegation was not proven by the greater weight of the evidence.
Johnny Lee Matson, Ph.D., and Ramasamy Manikam, Ph.D., testified for the plaintiff that the psychological services offered at the Center depart substantially from generally accepted standards in a number of ways, but the Court had difficulty in ascertaining to what standards they referred and what they meant when they testified that a practice was a substantial departure from those standards. It appeared that when they used terms such as “departures from generally accepted standards,” they meant that the practices at Conway Human Development Center were not the best. That interpretation of their testimony was confirmed to some extent by Dr. Matson. On c rossexamination, Dr. Matson testified that a substantial departure is the same thing as failing to meet best practices. Tr. 1219 (J . Matson). Althoug h he modified that statement on redirect examination, Tr. 1301, 1327 (J. Matson), it still appeared tobe an accurate description of the opinions offered by himself and Dr. Manikam, i.e., that the practices at Conway Human Development Center were not
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the best practices. For ex ample, at one poi nt Dr. Matson criticized one of the psy chological examiners for using bar charts rather than graphs to record behavioral incidents of residents who have behavior plans. Tr. 1145-46 (J . Matson). Dr. Matson also said that something could be a standard even if only ten percen t of the professionals in his fi eld were doing it. Dr. Manikam testified, “In this field, [ the] standards are fluid. I t’s not a body that is se tting the standard.” Tr. 3155 (R. Manikam). I n the end, the Court concluded that Drs. Matson and Manikam were correct that the provision of psychology services at Conway Human Development Center could be improved, nor is it likelythat anyone would argue to the contrary. The factthat psychology services at Conway Human Development Center could be improved does not mean, however, that the professionals who provide those services have departed so substantially from generally accepted standards that it cannot be said that they are exercising professional judgment.
The Court finds from the greater weight of t he evidence that the professionals who are providing psychological services at Conway Human Development Center areexercising professional judgment and that their practices are within the boundaries of g enerally accepted professional standards. Psychological services are provided at Conway Human Development Center by ten psychological examiners licensed by the State of Arkansas. Tr. 1936-37 (C. Reddig ). The chief psychologist, Dr. Carl Reddig, has an Ed.D. inpsychology. Tr. 1938-39 (C. Reddig); Pl.’s Ex. 557. The licensed psychological examiners have master’s degrees in psychology, Tr. 1937 (C. Reddig); Tr. 6550 (K. Priest); Tr. 6672 (E. Glenn); Tr. 6712 (W. McKindra), and six of them are licensed to practice independently, Tr. 6689 (E. Glenn). Their qualificationsmeet the standards imposed bythe regulations that govern intermediate care facilities for the mentally retarded. See 42 C.F .R. § 483.430(b)(5)(v). Conway Human Development Ce nter’s practice of hiring master’s level,
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licensed psychological examiners is within thebounds of generally accepted practice at intermediate care facilities for the mentally retarded. Tr. 5875-76 (K. Walsh).
The evidence established that some and perhaps al l of the psychological examiners at Conway Human Development Center lack formal training in applied behavioral analy sis. The regulations that govern intermediate care facilities for the mentally retarded, however, do not require psychologists to have formal training in applied behavioral analy sis. See 42 C.F .R. § 483.430(b)(5)(v). The evidence fails to show th at it is a substantial departure from generally accepted practice for psy chological services at such a faci lity to be provi ded by psychological examiners who do not have formal training in applied behavioral analysis.
The evidence also fails to prove that the practices followed and procedures u sed by the psychological examiners at Conway Human Development Center substantiallydepart from generally accepted professional standards. Much of the testimony at trial focused on functional behavior assessments, which are designed to determine the function that is served bymaladaptive behaviors. Tr. 5794 (K. Walsh). The theory is that if the function of a maladaptive behavior can be determined, then that function can be served in another way so that the individual will not feel the need to engage in the maladaptive behavior. Tr. 6563 (K. Priest). These functional behavior assessments are used in formulating positive behavior support plans and strategies. Tr. 6562- 63 (K. Priest). The psychological examiners at Conway Human Development Center exercise professional judgment in performing functional behavior assessments and in performing their other duties. Tr. 5828-30, 5836-37 (K. Walsh); Tr. 6566-70 (K. Priest); Tr. 6673-77 (E. Glenn). While it seems likely that Drs. Matson and Manikam could perform functional behavioral assessments and other duties of psychological examiners better than some of Conway Human Development Center’s psychological
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examiners, the evidence failed to establish that the functional behavior assessments or other work of the psychological examiners at the Center substantially depart from generally accepted professional standards. Tr. 5853-54 (K. Walsh).
4. Allegations that Conway Human Development Center Fails to Provide Adequate Medical Care
Although the plaintiff alleges that Conway Human Development Center has a pattern and practice of providing inadequate medical care to its residents, the greater weight of the evidence disproves that allegation.
At the time of trial, Conway Human Development Center had a staff of our full-time primary care physicians: Denise Thomas, D.O., who serves as the medical director; Patricia Parmley, M.D.; Jarrett Lea, M.D.; and Sam Schultz , M.D. Tr. 1724 (D. Thomas ); Tr. 5482 (P. Parmley ). Drs. Thomas and Lea are family doctors, and Drs. Parmley and Schultz are pediatricians.17 Tr. 5449, 5482 (P. Parmley). There was one vacancy on the medical staff at the time of trial. Tr. 6880 (C. Price). After-hours care is provided by another primary care physician, Dr. Gary Stewart, who resides at the facility. Tr. 1725 (D.Thomas). These primary care physicians are available to provide medical care to residents of Conway Human Development Center twenty-four hours per day, 365 days per year. Additional physician services, including those of a neurologist, an epidemiologist, and an infectious disease physician, are provided through a contract with the University of Arkansas for Medical Sciences. Tr. 6880 (C. Price). I n addition to its phy sicians, Conway Human Development Center employs approximately twenty registered nurses and ei ghty-six licensed practical nurses. Tr. 5382, 5386 (S. Gar dner). Not only is the Center sufficiently staffed with
17 Dr. Parmley has completed a fellowship in developmental behavioral pediatrics. Tr. 5449 (P. Parmley).
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medical personnel to meet the needs of its resident s, but it also provides psychiatric services in a manner that complies with generally accepted practices, uses and m onitors medications appropriately, and provides medical services that are adequate to protect its residents.
In making findings related to medical care, particularly psychiatric care, at Conway Human Development Center, the Court must judge the credibility of the plaintiff’s expert witnesses. Jodie Holloway, M.D., and Edwin J. Mikkelsen, M.D., who testified for the plaintiff, are board certified in general psychiatry and in child and adolescent psychiatry. Dr. Holloway is also board certified in forensic psychiatry. Both Drs. Holloway and Mikkelsen are qualified to give expert testimony in the field of psy chiatry under Rule 702 of the F ederal Rules of Evidence. B oth are impressive individuals. Ultimately, however, they were not more believable than the experts called by the defendants, in part because in some notable instances their conclusions went beyond the scope of the support offered for those conclusions.
For instance, Dr. Holloway testified that psychiatric services at Conway Human Development Center are substandard with respect to children because the Center does not employ a psychiatrist who is board certified in child and adolescent psychiatry. Tr. 2514-16 (J. Holloway). In support of that opinion, she cited and read from a policy statement of the American Academy of Child and Adolescent Psychiatry, which was received into evidence as P laintiff’s Exhibit 870. Tr. 2516 (J. Holloway). That policy statement on i ts face appl ies to hospitals, not to intermediate care facilities. Tr. 6206-07 (L . Kraus); Pl.’s Ex . 870. Mo reover, Dr. Holloway admitted on crossexamination that the American Academy of Child and Adolescent Psychiatry refers to its policy statement as “a voice on the issues” and states that the policy is not intended to define a standard of care. Tr. 2635 (J. Holloway).
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Dr. Holloway also testified that Conway Human Development Center does not adequately assess individuals for tardive dy skinesia, a disorder that sometimes develops as a si de effect of psychotropic medications. The percentage of individuals at Conway Human Development Center with a diagnosis of tardive dyskinesia is low. Tr. 3979 (T. Kastner). Even though Conway Human Development Center uses the Abnormal Involuntary Movement Scale to assess residents for tardive dyskinesia, Dr. Holloway testified that the incidents of tardive dyskinesia at the Center must be greater than the number of persons who have that diagnosis. Tr. 2606-07 (J . Holloway). She concluded, therefore, that Conway Human De velopment Center does not adequately assess individuals for tardive dyskinesia as a side effect of the psychotropic medications used there. That the percentage of residents at Conway Human Development Center who have a diagnosis of tardive dyskinesia is low c ould mean either that the Center fails to identify the individuals with tardive dyskinesia or that the Center manag es psychotropic medications in a manner that minimiz es side effects such as tardive dyskinesia. The evidence failed to show that anyresident at ConwayHuman Development Center has tardive dyskinesia but has not been diagnosed. Tr. 4701-02 (A. Warren); Tr. 6214-15 (L. Kraus). Nevertheless, Dr. Holloway insisted that the Center does not adequately assess residents for tardive dyskinesia.
Dr. Mikkelsen testified that the overall medical services offered at Conway Human Development Center are substandard and cited as evidence the fact that the average age of death of residents at the Center is lower than the average age of death of residents at certain facilities in Massachusetts and Connecticut. Tr. 3772 (E. Mikkelsen). Theevidence established, however, that those facilities serve a substantially older population than does Conway Human Development Center, so the facilities are not comparable as to the average age at which residents might die.
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Tr. 3847-48 (E. Mikkelsen); Tr. 4096-97 (T. Kastner). Dr. Mikkelsen also testified that the rate of deaths due to aspiration pneumonia at Conway Human Development Center supports his opinion that medical care at the Center is substandard, Tr. 3776-77, 3918 (E. Mikkelsen), but there is no statistically significant difference between the death rate due to pneumonia at the Center and the rate at the facilities in Massachusetts to which Dr. Mikkelsen was comparing the Center. Tr. 4100-01 (T. Kastner).
Dr. Mikkelsen pointed to several examples of Conway Human Development Center’s alleged failure to monitor the side effects of psychotropic medications, one of which concerned CL, a nineyear-old boy who was admitted to the Center with a preexisting prescription for Lithium.18 Lithium is a psy chotropic medication with a narrow ther apeutic range and severe toxic consequences. Tr. 5480 (P. Parmley ). When CL was admitted in to Conway Human Development Center, the medical staff had some doubt as to whether he had received his Lithium consistently. Tr. 5456 (P. Parmley). They drew blood to ascertain th e Lithium level and found that the level was 0.5. Tr. 4118 (T. Kastner). S taff at the C enter then administered the Lithium in accordance with the prescription that had been written before CL came to the Center. After allowing sufficient time for the Lithium to reach a st able level, another lab test was conducted and the Lithium level was determined to be 1.0, which is within what Dr. Mikkelsen called the therapeutic rang e. Tr. 4118 (T. Kastner); Tr. 5456-57 (P. Parmley). Over the following month, CLhad one incident of difficulty in swallowing, but there was no other record ofanything out of the ordinary. Tr. 4119 (T. Kastner). Approximately one month later, staff observed one eveningthat CLhad an altered gait and took him to the infirmary. Tr. 5457 (P. Parmley). At the infirmary it was found that he had some upper
18 See Tr. 3660-88 for Dr. Mikkelsen’s direct testimony regarding CL. 34

respiratory distress. Dr. Stewart,who provides after-hours care in the infirmary, ordered thata check be taken of the Lithium level. The Lithium level was found to be in excess of 4.0, which is a toxic level. Tr. 4119 (T. Kastner). CLwas kept in the infirmaryovernight, and on the following morning Dr. Stewart ordered a “trough level” test be taken to determine the level of Lithium. The level again exceeded 4.0, and Dr. S tewart admitted CL to Conway Regional Medical Center. Tr. 4121 (T. Kastner); Tr. 5458 (P. Parmley). At Conway Regional Medical Center, the Lithium level was again determined to be at a toxic level, and CL was transferred to Arkansas Children’s Hospital in Little Rock, Arkansas. Tr. 5458 (P. Parmley). His Lithium level was stabilized, and he was found to have pneumonia. Tr. 4123 (T. Kastner). CL was later discharged and has suffered no ongoing effects of Lithium toxicity. Tr. 5459 (P. Parmley). According to Dr. Mikkelsen, CL’s Lithium level continued to increase duringthe month betweenCL’s admission into ConwayHuman Development Center and the evening when he was first taken to the infirmary. Dr. Mikkelsen believed that the swallowing incident was probably due to nausea and vomiting, which are signs of Lithium toxicity. Tr. 3665-66 (E. Mikkelsen). He also testified that CL necessarily had other symptoms of Lithium toxicity that were not recorded because the stfaf failed to observe them. Tr. 3678-79 (E. Mikkelsen).
In contrast, Theodore Kastner, M.D., testified that there was no basis for believing that CL had Lithium toxicity during the month between his admission to Conway Human Development Center and the evening when he was taken to the infirmary. Tr. 4125 (T. Kastner). According to Dr. Kastner, the elevation in CL’s Lithium level likely was the result of pneumonia and dehydration. Tr. 4123-24 (T. Kastner). Dr. Kast ner did not believe that the si ngle incident of difficulty in swallowing was caused by Lithium toxicity, nor did he find any evidence that CL had symptoms of Lithium toxicity during that month. Tr. 4126 (T. Kastner). Dr. Kastner, along with another expert,
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Louis Kraus, M.D., concluded that Conway Human Development Center staff carefully monitored potential side effects of the Lithium and saved CL’s life by quick response to the sudden onset of Lithium toxicity secondary to pneumonia and dehydration. Tr. 4530 (T. Kastner); Tr. 6218 (L. Kraus). After it was called to Dr. Mikkelsen’s attention that CL had pneumonia, he testified that the pneumonia was due to aspiration of fluids dur ing the swallowing incident. Nothing in the medical records indicates that CL aspirated fluids.
Dr. Mikkelsen’s opinion regarding CL depends upon findings for which there is no evidence and blames the staff at Conway Human Development Center for failing to record evidence that would have supported those finding s. The evidence at trial established tha t the staff of Conway Human Development Center appropriately monitored CL and responded to changes in his medical condition—they saved his life. Yet, Dr. Mikkelsen criticized the medical care given to CL based on an assumption that CL had Lithium toxicity for a month before any one noticed, which is an assumption unsupported by evidence.
There were two more examples of a similar nature in the testimony of Dr. Mikkelsen. One of them invol ved TN, who had a dramatic decreas e in his platelet count after having been on Depakote for several years.19 Dr. M ikkelsen testified that the dramatic decrease in platelets was secondary to Depakote, which had been prescribedfor TN by a neurologist as a means of controlling TN’s seizures. According to Dr. Mikkelsen, this was another instance in which Conway Human Development Center failed to monitor the side effects of psychotropic medication. The evidence established, however, that the dramatic decrease in platelet count wa s secondary to an acute infection, and the platelet count rebounded with treatment of the infection and administration of
19 See Tr. 3736-52 for Dr. Mikkelsen’s direct testimony regarding TN. 36

steroid medication even tho ugh TN continued to receive Depakote. Tr. 4179 (T. Kastner). Dr. Mikkelsen recognized that the drop in TN’s platelet count could be attributed to the infection but said that whether the dramatic decrease in platelet count “was solely related to the Depakote or the Depakote plus the acute illness would be hard to sort out.” Tr. 3752 (E. Mikkelsen). Still, Dr. Mikkelsen admitted that TN’s pal telet count recovered to its baseline level in the face ofongoing treatment with Depakote. Tr. 3866 (E. Mikkelsen); cf. Tr. 4694-95 (A. W arren). TN there after continued taking Depakote, and yet he did well. Tr. 4179 (T. Kastner). Common sense suggests that if TN’s platelet count recovered to its baseline level and remained stable thereafter while TN was taking Depakote, Depakote was not the cause of the dramatic decrease in the platelet count.
Another example from Dr. Mikkelsen’s testimony concerned CJ, a fifty-nine-year-old woman who Dr. Mikkelsen testified died from neuroleptic malignant syndrome caused by an increase in her Haldol prescription.20 Dr. Mikkelsen testified that CJ died from neuroleptic malignant syndrome even though the medical records do notreflect that she hadsymptoms typical of that syndrome. One of the classic symptoms, as Dr. Mikkelsen admitte d, is hig h fever. Althoug h there are a few instances in the literature of a diagnosis of neuroleptic malignant syndrome without high fever, it is exceedingly rare. Tr. 3874-75 (E. Mikkelsen); Tr. 4199, 4203 (T. Kastner). CJ’s temperature was normal or below. Pl.’s Ex. 791-1 to -5. Another symptom is rigidity. Dr. Mikkelsen testified that the fact that CJ had her knees bent meant that her legs were rigid, which is hardly convincing. Tr. 3706-08 (E. Mikkelsen); Tr. 4193 (T. Kastner). Another symptom of neuroleptic malignant syndrome is an oculogyric crisis, which is a spasmodic attack marked by a fixation of the eyes in one position—usually upward. Tr. 3875-76 (E. Mikkelsen). Nothing in the medical records indicated
20 For Dr. Mikkelsen’s testimony regarding CJ, see Tr. 3690-3718. 37

that CJ’s eyes were fixated. Tr. 4697 (A. Warren). Dr. Mikkelsen testified that the medical record failed to state that CJ’s eyes were fixated because the treating physician failed to look at CJ’s eyes. Tr. 3718, 3876 (E. Mikkelsen). Dr. Mikkelsen was not present when the physician examined CJ, so he cannot possibly know whether the physician examined her eyes.
Although Drs. Holloway and Mikkelsen are highly qualified expert psychiatrists, the Court has concluded that their opinionsare not as reliable as the contrary opinions offered byexperts called by the defendants.
a. Allegations that Psy chiatric Services for Children at Conway Human Development Center Are Inadequate
The greater weight of t he evidence establishes that psychiatric services for chi ldren at Conway Human Development Center comply with generally accepted professional standards.
Douglas Callahan, M.D., is the consulting psychiatrist at Conway Human Development Center. Tr. 1729 (D. Thomas). Dr. Callahan is licensed to prac tice medicine in the State of Arkansas and is board certified in general psychiatry. The core com petency of a board-certified psychiatrist includes the care of children. Tr. 4224 (T. Kastner). Dr . Callahan has provided psychiatric services to persons with intellectual and developmental disabilities for more than twenty years. Tr. 5335-36 (D. Callahan). He serves as a consul tant to the primary care physicians. The residents at Conway Human Development Center who need psychiatric services are referred t o Dr. Callahan, who sees them on campus. Direct care staff and psychological examiners accompany residents when they are seen by Dr. Callahan, and they provide information to him reg arding the residents’ behavioral symptoms. Tr. 5364-65 (D. Callahan); Tr. 6556-57 (K. Priest). Dr. Callahan makes diagnoses and recommendati ons regarding medication and ot her psychiatric care. Hi s diagnoses and recommendations are recorded in progress notes, which are forwarded to theprimary
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care physicians for review. The pri mary care physicians then decide whether to implement the recommendations from Dr. Calla han. Tr. 5484 (P. P armley). Dr. Callahan is on campus approximately two days each week. He has an offci e in the same suite of offices as the primary care physicians. When he is on campus, he regularly sees the primary care physicians, and when he is not on campus, he is available for consultation by telephone.
There is a shortage of child psychiatrists in the United States and specifically in the State of Arkansas. Tr. 4616-18 (D. Fassler); Tr. 6204-05 (L. Kraus). Moreover, veryfew child psychiatrists have specific training in de aling with children with developmental disabilities. Tr. 4623-24 (D. Fassler). Psychiatric services are provided to children in the United States most often through pediatricians or general practitioners. Tr. 4621-22 (D. Fassler).
The model of care atConway Human Development Center bywhich psychiatric services are provided to children, through the use of a board-certified pediatrician consulting with a physician who is board certified in general psychiatry, is permitted by the regulations that govern intermediate care facilities for the mentally retarded, 42 C.F.R. § 483.430(b)(5), and is within the bounds of generally accepted practice fo r such facilities. Tr. 4222 (T. Kastner); Tr. 4624-25 (D. Fassler); Tr. 6212 (L. Kraus). Psychiatric services provided to children at Conway Human Development Center are consistent with generally accepted professional standards. Tr. 6212-13 (L. Kraus).
b. Allegations that Psychotropic Medications Are Inappropriately Prescribed to Control Behavior
Although the plaintiff alleg es that Conway Human Development Ce nter overprescribes psychotropic medications to control behavior, the greater weight of the evidence does not support that allegation. Psychiatric diagnoses generally are made following the criteria of the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders. Those criteria often relyupon patient
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reports that persons with mental retardation are unable to give. The reliability of diagnoses of psychiatric disorders in persons with mental retardation, therefore, is in inverse proportion t o the level of disability. Tr. 3818-19 (E. Mikkelsen); Tr. 4645-46 (A. Warren). In other words, the greater the level of mental retardation, the less reliable the psychiatric diagnoses. While in general it may be inappropriate to use medication simply to suppress bad behavior, it is nota substantial departure from generally accepted professional standards to use m edication to treat specific behavioral symptoms in psychiatric patients with mental retardation, whether or not an identifiable psychiatric diagnosis can be made. Tr. 3828 (E. Mikkelsen); Tr. 4646, 4679, 4682-83, 4693-94 (A. Warren); Tr. 6222-24, 6275 (L. Kraus). T he regulations that govern intermediate care facilities for the mentally retarded authorize the use of m edication to control inappropria te behavior. 42 C.F .R. § 483.450(e). So far as the evidence showed, the uesof psychotropic medications at ConwayHuman Development Center is consistent with those regulations.21 The use of psychotropic medications at Conway Human Development Center is not a subst antial departure from generally accepted professional standards. Tr. 4703-04 (A. Warren); Tr. 5450 (P. Parmley); Tr. 6207, 6223-24, 6227 (L. Kraus).
c. Allegations that Conway Human Development Center Fails to Monitor Side Effects of Psychotropic Medications
In addition to allegations of overuse, the plaintiff alleges that Conway Human Development Center fails to monitor the side effects of the psychotropic medications it prescribes. The greater weight of the evidence does not support that allegation.
All medications have potential side effects. In the case of psychotropic medications, those
21 The caveat to this statement is that no evidence was presented regarding 42 C.F.R. § 483.450(e)(4)(ii).
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side effects can be serious. Reasonably careful physicians weigh the risks of the side effects of a particular medication against the benefits that the patient mayobtain from the use of that medication. Dr. Callahan testified, and the Court believes, that at Conway Human Development Center the risk versus benefit calculationoften is done mentallybut not recorded in the practicingphysician’s notes. Tr. 5349, 5372 (D. Callahan).
The use of psychotropic medications at Conway Human Development Center typically is initiated by a recommendation from Dr. Callahan (unless a client comes to Conwa y Human Development Center with pr eexisting prescriptions for psy chotropic medications) and then is forwarded to the primary care physician who writes the order. Before the prescription is filled, the use of the psychotropic medication must be reviewed by the interdisciplinary team and the human rights committee, and it must be approved by the parent or guardian of the resident. The interdisciplinary team, which includes the primary care physician, discusses what the medication is expected to accomplish, what the potential side effects are, and the relationship between the potential risks and the potential benefits. Every resident on psychotropic medication will have taper criteria which the psychological examiners monitor. Tr. 6614 (K. Priest). After all of the consents are in place, the primary care physician orders the drug and establishes a laboratory protocol for monitoring potential problems. Tr. 508-09 (S. Murphy ); Tr. 5484-87 (P. Parmle y). These safeg uards are reasonably prudent safeguards designed to ensure that the risks of psychotropic medications are accurately and adequately assessed and weighed against the potential benefits. Tr. 4163-64 (T. Kastner); Tr. 6221 (L. Kraus).
The potential side effects of each psy chotropic medication are listed in the individual program plan for each resid ent to whom psy chotropic medications are administered. Tr. 4925
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(S. Murphy). Staff at Conway Human Development Center are trained to watch for symptoms that may be associated with side effects of psychotropic medications. Tr. 509, 4871-72, 4924-25 (S. Murphy). In addition, when psychotropic medications may result in consequences measurable through laboratory analyses, monitoring is conducted through laboratory analyses. Tr. 5486-87 (P. Parmley).
Conway Human Development Center also uses the Abnormal Involuntary Movement Scale to measure involuntary movements known as ta rdive dyskinesia. Th e Abnormal I nvoluntary Movement Scale is the most widely used instrument for t he screening of t ardive dyskinesia. Tr. 4231 (T. Kastner).
The monitoring of potential side effects of psychotropic medications at the Center complies with generally accepted professional standards. No pattern or practice exists at Conway Human Development Center of failingto monitor for side effects of psychotropic medications. Tr. 4171-73 (T. Kastner).
d. Allegations Regarding Polypharmacy The plaintiff also takes issue with C onway Human Development Center’s use of polypharmacy, that is, prescribing two or more psychotropic medications to a resident. Tr. 5342 (D. Callahan). Many of the residents at Conway Human Development Center come to the Center with psychiatric diagnoses and with prescriptions for multiple psychotropic medications. Tr. 5346 (D. Callahan). The practice at Conway Human Development Center is to a ttempt to reduce the number of psychotropic medications as well as the dosage, but that is not always possible. Tr. 534546 (D. Callahan). A n effort is made to avoid poly pharmacy, but in some instances, in the professional judgment of the physicians at Conway Human Development Center, the benefits of
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polypharmacy to individual residents outweigh the risks to those residents, and in those instances polypharmacy is used. Tr. 5346-47 (D. Callahan). In 2010, 278 of the residents at Conway Human Development Center we re prescribed psychotropic medications. F orty-three percent of those residents were prescribed one psychotropic medication; 3 3% were prescribed two psy chotropic medications; 17% were prescribed three psy chotropic medications; 4.7% were prescribed four psychotropic medications; and 2 re sidents (fewer t han 1%) were prescribed five psychotropic medications. Tr. 4153 (T. Kastner).
The greater weight of the evidence fails to establish that the use of polypharmacy at Conway Human Development Center is excessive and fails to establish a pattern and practice of inappropriate or unreasonable use of polypharmacy at the Center.
e. Allegations that Inadequate Medical Care Causes Unnecessary Deaths at Conway Human Development Center
The plaintiff also alleges that many unnecessary deaths have occurred at Conway Human Development Center due to inadequate medical care, but, again, the greater weight of the evidence is to the contrary.
Eldon Schulz, M.D., is the medical director for the Division of Developmental Disability Services for the State of Arkansas. Tr. 6177 (E. Schulz). He is the Ro ckefeller Professor for Children with Special Healthcare Needs, Di rector of t he Dennis Development Center at the University of Arkansas for M edical Sciences, and a faculty member practicing at Arkansas Children’s Hospital. Tr. 6178-79 (E. Schulz). Since 2005 he has served as the phy sician representative on a committee that reviews all of the deaths of residents of the human development centers in Arkansas. Tr. 6179, 6192 (E. Schulz). As a member of that committee, he reviewed in
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depth the records pertainingto each death at Conway Human Development Center between 2005 and the time of trial. In his opinion, which the Court credits and adopts, during that time none of the deaths of r esidents at Conway Human Devel opment Center was due t o medical malpractice. Tr. 6192-93 (E. Schulz).
f. Conclusion as to Adequacy of Medical Care The greater weight of the evidence establishes that Conway Human Development Center provides adequate medical care, including psychiatric care, to its r esidents. Tr. 4083-84, 4218 (T. Kastner); Tr. 4649 (A. W arren); Tr. 5456 (P. Pa rmley). No pattern or practice of medical negligence or inadequate medical care exists at the Center. 5. Allegations that Conway Human Development Center Fails to Exercise
Care to Prevent Choking The plaintiff alleges that Conway Human Development Center fails to take proper steps to prevent choking incidents among its residents. The greater weight of the evidence, however, proves that the Center exercises reasonable care to prevent choking. First, Conway Human Development Center employs seven speech language pathologists who work full-time at the center. Tr. 5386, 5417 (C. Johnson). The speech language pathologists are licensed by the State of Arkansas and have a number of duties, including providing speech-language therapy services, providing augmentative communication systems, assessing residents for dysphagia, identifying choking risks, and assisting in issues related to swallowing. Tr. 5387, 5391-92, 5417 (C. Johnson). Second, new employees of ConwayHuman Development Center are given dysphagia training in which they are taught to observe silent signs of aspiration, to thicken liquids properly, and to use adaptive equipment properly. Tr. 5396 (C. Johnson). New employees are taught that each resident’s
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eating plan should be reviewed before assisting that resident at mealtime. Tr. 5396 (C. Johnson). Third, Conway Human Development Center takes a number of steps to avoid choking
incidents during mealtime. The Center employs a dietician who is licensed by the State of Arkansas. Tr. 5316-17 (A. Holbrook). Each residentof Conway Human Development Center has a nutritional and eating plan that is desig ned, among other things, to avoid choking incidents. Tr. 5317-18 (A. Holbrook); Tr. 5393-94 (C. Johnson). The Center also uses food service audits and mealtime monitoring to check for proper positioning, silent aspiration, use of adaptive equipment, and other factors related to choking and aspiration. Tr. 5393-94 (C. Johnson).
Fourth, Conway Human Development Center assesses residents for risk of chokingusing an assessment tool that has been statistically validated on individuals with developmental disabilities residing in congregate facilities. Tr. 3304 (J. Sheppard). A choking risk assessment is done each year in preparation for the annual meeting of the residents’ interdisciplinary teams. Tr. 5407 (C. Johnson). If a resident chokes, that person is reassessed. Tr. 5407 (C. Johnson). In the assessment, the resident is identified as either low risk or high risk for pneumonia and choking. Tr. 6395 (L. Henderson). If a resident scores fifty percent or greater on the assessment for either the choking or the pneumonia risk, that person is placed in a high risk category. Tr. 6395 (L. Henderson). Also, if a resident has a chokinghistory, has x-ray evidence of aspiration, or is fed by a tube, those factors could place the person in a hig h risk categ ory. Tr. 6395-96 (L . Henderson). The information regarding a resident’s risk factors is communicated to the program coordinator so that it can be taken into account on that resident’s twenty-four-hour schedule and the individual program plan by the interdisciplinary team. Tr. 6396 (L. Henderson). The information is also placed on the dietarysheet that is used in the living unit and is part of the feeding plan. Tr. 6396 (L. Henderson).
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Finally, Conway Human Development Center has a central dysphagia committee, which acts
as a consultant and an advisory to the interdisciplinary teams regarding dysphagia and swallowing
disorders. Tr. 6389 (L. Henderson). The committee serves to support and make recommendations
to the teams as wellas the primary care physicians. Tr. 6389 (L. Henderson). The central dysphagia committee reviews all airway events, such as changes in risk factors for choking; choking events;22 difficult swallowing events;23 and cases that are referred by any member of the committee, the
incident review committees, theinterdisciplinary teams, or the physicians. Tr. 6389 (L. Henderson).
The committee also reviews cases of pneumonia. Tr. 6389 (L. Henderson). The head ofthe central
dysphagia committee is Linda Henderson, R.N., whosetitle at Conway Human Development Center
is “Quality Improvement Nurse.” Tr. 6387-89 (L. Henderson). Other members of the committee
include a staff development nurse, primary care physicians, four speech t herapists, three clinical
therapists, a clinic supervisor, an occupational therapist, a physical therapist, a dietician, a human
rights committee chairperson, a living unit supervisor representative, an infection control nurse, an
administrative representative, Conway Human Development Center’s dentist and dental hygienist,
a program coordinator representative, and the director of nursing. Tr. 6402 (L. Henderson). The
central dysphagia committee meets monthly but will sometimes meet more often than once a month
22 Conway Human Development Center defines “choking” as a partial or complete obstruction of the airway due to a foreign body, such as food or non-edibles. The onset of respiratory distress may be sudden with coughing; there may be agitation in the early stages of airway obstruction. The signs of respiratory distress include labored, ineffectual breathing until a person can no longer breathe; loss of consciousness will occur if the obstruction is not relieved. Tr. 6402 (L. Henderson).
23 Conway Human Development Center defines a “difficult swallowing event” as an event in which no intervention is required; no acute change in vital signs occurs; and there are no symptoms of airway obstruction, such as change in skin color, eyes protruding, dizziness, change in level of consciousness, or inability to speak or make a sound. Tr. 6390 (L. Henderson).
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if necessary. Tr. 6392-93 (L. Henderson). Prior to a committee meeting, Henderson reviews the clinical record and gathers reportable
information that is used by the central dysphagia committee. Tr. 6391 (L. Henderson). The report for any particular resident incl udes a history of choking events; a history of difficult swallowing events; yearly choking and pneumonia assessmen t risks; any x-ray studies or diag noses of swallowing abnormalities; a nd any types of follow-th rough studies, such as an esophagogastroduodenoscopy24 or x -rays of the upper g astrointestinal region. Tr. 6391 (L. Henderson). The committee then reviews the resident’s respiratory diagnoses, such as asthma or chronic rhinitis, and the resident’s history of respiratory disease or dist ress. Tr. 6391 (L. Henderson). The committee also reviews spinal issues, such as curvature of the spine, rod or metal implants, and the like. Tr. 6391 (L. Henderson). The committee looks at the resident’s past history of pneumonia and aspiration; other gastrointestinal and oral disorders, such as gastrointestinal reflux disease or gastritis; esophagitis; constipation; ileus or hiatal hernia; gastric ulcers; or H. pylori infection. Tr. 6391-92 (L. Henderson). The committee also looks for strictures of the esophagus and gingivitis. Tr. 6392 (L. Henderson). It then considers what precautions and interventions are already in place and reviews the resident’s food and fluid consistencies and whether the person has altered means of nutrition, such as a feeding tube. Tr. 6392 (L. Henderson). The committee also reviews the resident’s oral hygiene care. Tr. 6392 (L. Henderson).
When a difficult swallowing event occurs, the resident is evaluated by a speech therapist, usually at the next meal or the next snack after the swallowing event. Tr. 6393-94 (L. Henderson).
24 An esophagogastroduodenoscopy is an endoscopic examination of the esophagus, stomach, and duodenum. Dorland’s Illustrated Medical Dictionary 643 (30th ed. 2003).
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The speech therapist determines whether it is safe for the resident to eat and, if so, what type of diet is needed and then communicates that information to the dietician. Tr. 6393 (L. Henderson). If the physician, the dietician, or the speech therapist believes that a swallow study is needed, then it is ordered. Tr. 6393 (L. Henderson). In 2009, thirty-three percent of the residents of Conway Human Development Center were referred for a modified barium study, and ninety-one percent of the studies revealed abnormal swallowing. Tr. 3305 (J. Sheppard).
Members of the staff at Conway Human Development Center are trained in methods of clearing a resident’s airwaywhen a chokingincident does occur. If a chokingevent occurs, staff will immediately provide first aid and make any necessary dietary changes. Tr. 6397 (L. Henderson). The speech therapist will evaluate and report her findings to the phy sician as well as to a core meeting of some of the central dy sphagia committee members. Tr. 6397-98 (L . Henderson). Sometimes a doctor will be called to the scene of achoking event. At other times,the resident will go to the infirmary after a choking event to be evaluated by a physician. The interdisciplinary team will have a special staffing to make any necessary changes in the resident’s twenty -four-hour schedule or treatment plan. Thecentral dysphagia committee will review the incident, and a swallow study may be conducted. A gastrointestinal physician may be consulted to evaluate the case. Reflux precautions may be added if they have not yet been instituted.
Carly Crawford, an expert witness for the plaintiff, testified that members of the staff at Conway Human Development Center do not exercise generally accepted minimum professional judgment regarding choking. Tr. 2756-57 (C. Crawford). The Court, however, isnot convinced that Crawford is qualified to testify as an expert regarding professional standards for the prevention of choking by developmentally disabled persons. Crawford is an occupational therapist with an
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undergraduate degree in deaf edu cation and a maste r’s degree in occupational therapy. She is licensed as an occupational therapist in the St ate of Oklahoma. Tr. 2743 (C. Crawford). She described occupational therapyas looking “at how an individualuses their hands for dailyactivities” and at positions such as sitting or standing for daily activities. Tr. 2741 (C. Crawford). On direct examination, she said that shewas qualified to testifyabout services other than occupational therapy because “I have had education relative to health systems, body systems, understand health risks, and understand anatomy, physiology, and then have been working shoulder to shoulder with speech pathologists and physical therapists.” Tr. 2742-43(C. Crawford). Crawford presentedno evidence that convinced the Court that she was qualifi ed to testify as an ex pert in any area other than occupational therapy.
Apart from her lack of qualifications, Crawford’s credibility was called into question by a lack of care i n the manner in which she wrot e her report . C ross-examination revealed that Crawford’s report in this case identified the subject of her report as Beatrice State Development Center, which is the name of a facility in another state about which she had previously written a report. She also referred in her report to sections where recommendations would be made and methodology would be described, but no recommendation section appeared in the report, nor was her methodology described anywhere in the report. Tr. 2905-07 (C. Crawford).
Even if the Court disregarded these discrepancies, Crawford’s testimony on choking events at Conway Human Development Center is unpers uasive. She testified that Conway Human Development Center has an excessive number of chokingepisodes, but the only benchmark that she offered for comparison was that she had recentlybeen to a facilitywith 250 to 300 residents that had no choking incidents over a six-month period. Tr. 2768 (C. Crawford). During the 2009 calendar
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year, Conway Human Development Center ha d eleven incidents of choking . Tr. 6439-40 (L. Henderson). The fact that one facility, with a population of 250 to 300 persons, had noepisodes of choking in a six-month period, while some500 residents of ConwayHuman Development Center had eleven episodes of choking in a twelve-month period is insufficient to establish that Conway Human Development Center fails to exercise reasonable care to prevent choking events. Crawford’s testimony was inadequate to form the basis for any reliable conclusions.
Other than Crawford’s testimony that one facility with 250 to 300 residents had no choking episodes in a six-month period, the plaintiff presented no evidence to establish a benchmark from other facilities across the United States by which one could determine that the rate of choking at Conway Human Development Center was unreasonably or unusually large.
The weight of the evidence sug gests that it is not. Cynthia Johnson, a speech lang uage pathologist employed by Conway Human Deve lopment Center, calculated that there are approximately 548,000 occasions each year when a resident might have a choking event,25 so the number of choking events is quite smallcompared to the occasions in which chokingis a possibility. Tr. 5446 (C. Johnson). Justine Joan Sheppard, Ph.D., called by the defendants as an expert in speech pathology, testified that in 2009 seventy -four percent of the residents of Conway Human Development Center had a hig h risk of choki ng, but only 2.17% ex perienced a choking event. Tr. 3304 (J. Sheppard).
In the past several years, Conway Human Development Center has had one death as a result of choking. That death occurred in 2008 when a profoundly retarded, fifty-eight-year-old resident
25 The calculation was accomplished by multiplying the number of residents by the number of mealtimes per year and adding one daily medication pass per day per resident.
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went unnoticed into the kitchen and stuffed food into her mouth. Tr. 6440-42 (L. Henderson). At 11:30 p.m., members of the direct care staff working the night shift noticed the resident asleep on a couch in the day room, went into the bedrooms to check other residents, and then returned to the day room at 11:35 p.m., by which time the resident had gone into the kitchen and stuffed food into her mouth. Pl.’s Ex. 6-3. Staff attempted to remove the food from the resident’s mouth, clear the airway by abdominal thrusts, and administer cardiopulmonary resuscitation. An ambulance arrived at 11:57 p.m. and took the resident to the nearest hospital where she died of aspiration pneumonia several days later. Pl.’s Ex. 6-3. While that incident is certainly tragic, no evidence was presented sufficient to show it is part of a pattern opr ractice of failing to take precautions to minimize choking risks.
Ultimately, the evidence fails to e stablish a pattern or practice at Conway Human Development Center of failing to take appropriate and reasonable steps to prevent choking.
6. Allegations that Conway Human Development Center Fails to Exercise Reasonable Care to Prevent Aspiration Pneumonia
Similarly, the plaintiff alleges that Conway Human Development Center fails to exercise reasonable care to prevent aspiration pneumonia, but, yet again, the greater weight of the evidence is to the contrary.
Conway Human Development Center provides preventive care for pneumonia by taking an annual pneumonia risk assessment; by taking reflux precautions, such as keeping residents up for a period of time after they eat and elevating the head of t he bed; by providing oral care; and by administering a pneumonia vaccination annually. Tr. 5383 (S. Gardner).
If a resident is suspected of having pneumonia, that person is assessed by a physician who makes a diagnosis. Tr. 5384 (S. Gardner). If a resident is diagnosed with pneumonia, treatment may
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include an oral or intravenous antibiotic, updrafts, and breathing treatments. Tr. 5384 (S. Gardner). The resident may be moved into the on-site infirmary or trans ported to the hospital. Tr. 5385 (S. Gardner).
Data regarding pneumonia is maintained byConway Human Development Center’s infection control nurse, who is a member of the central dysphagia committee. The infection control nurse gives Linda Henderson, the head of thecentral dysphagia committee, a list of everyresident who has had a diagnosis, has had an x-ray, or has been inthe infirmary or hospital for pneumonia duringthat month. Tr. 6413-14 (L. Henderson). The centraldysphagia committee reviews cases of pneumonia, acting in an advisory role to the interdisciplinary team. Tr. 6411-13 (L. Henderson). If a resident has a case of pneumonia, the central dysphagia committee will follow up with that resident one to three months after the case of pne umonia to ascertain that resident’s respiratory status. Tr. 6414 (L. Henderson).
Dr. Mikkelsen testified that the rate of death from aspiration pneumonia at Conway Human Development Center was excessive compared to facilities in Massachusetts.26 Tr. 3776-77, 3918 (E. Mikkelsen). In 2005, twenty-seven percent ofthe deathsat Conway Human Development Center were caused by aspiration pneumonia, while twenty -one percent of the d eaths in Massachusetts facilities were caused by aspiration pneumonia. Tr. 4101 (T. Kastner). Over a two year period, there were nine deaths at ConwayHuman Development Center due to aspiration pneumonia and six at the Massachusetts facilities. Tr. 4101 (T. Kastner). Although there was some difference between the
26 Carly Crawford also testified that the number of incidences of aspiration pneumonia at Conway Human Development Center was excessive. However, as mentioned above, Crawford was not qualified to testify as an expert in that field, nor did she offer any benchmarks as evidence from which one could compare Conway Human Development Center with other institutions.
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number of deaths due to aspiration pneumonia at Conway Human Development Center and facilities in Massachusetts, the difference between the rates of death is quite small and is not sta tistically significant. Tr. 4100-01 (T. Kastner).
Conway Human Development Center exercises reasonable care to prevent and to detect pneumonia. Although the plaintiffalleges that the residents of ConwayHuman Development Center experience a high rate of aspiration pneumonia, the evidence fails to show that the rate of aspiration pneumonia at Conway Human Developm ent Center is statistically higher than the rate in other facilities or among any population with similar risks. Tr. 4079 (T. Kastner). The evidence fails to establish a pattern or practice at Conway Human Development Center of failing to take appropriate and reasonable steps to prevent aspiration pneumonia.
7. Allegations that Conway Human Development Center Fails to Exercise Reasonable Care to Prevent Fractures
The plaintiff alleges that Conway Human Development Center fails to exercise reasonable care to prevent fractures, but the greater weight of the evidence establishes that the Center exercises reasonable care to prevent fractures.
The population at ConwayHuman Development Center has an increased risk ofosteoporosis for a number of reasons. In light of this risk, Conway Human Development Center takes a number of steps to prevent fractures among its residents. The C enter uses a DEXA (dual energy x-ray absorption) meter scan for assessing fracture risks. Tr. 6403 (L. Henderson). The DEXA meter has x-ray capability and uses computer software to analyze the lumbar spine and hip, determining bone mineral density and contents. The software compares that information to what would be expected at peak bone age, which is about thirty years of age; compares previous scores and measurements; and then takes all of that information and formulates it into a risk assessment. The resident is then
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categorized as not at risk, at incerased risk, or at high risk for bonefracture based on the results. The DEXA meter also includes a photographic representation of the scan of the bones, which shows spaces and gaps in the bones. Tr. 6403-05 (L. Henderson). Dr. Steve Kemp, an endocrinologist who consults with Conway Human Development Center, rates these scans and makes the diagnoses of osteoporosis, osteopenia, or normal scan. Tr. 6405, 6438 (L. Henderson). DEXA meter scans are conducted every two years, and the primary care physician reviews the DEXA scan results, as does the interdisciplinary team. Tr. 6405-06 (L. Henderson). Veryfew intermediate care facilities for the mentally retarded have an on-site DEXA meter. Tr. 4065 (T. Kastner).
Some residents are not suscepti ble to a DE XA scan because of body shape. For those residents, Conway Human Development Center uses a urine test called an “N-telopeptide,” which assesses the rate of bone abs orption in the urine. T r. 6407 ( L. Henderson). Conw ay Human Development Center also may perform other types of testing, such as endocrine testing, testing for Vitamin D, and testing for calcium. Tr. 6407-08 (L. Henderson).
In addition to testing for increased risk of fractures, Conway Human Development Center has procedures in place for treating residents who are at risk. Based on the results of a laboratory analysis of the resident’s blood, the treatment protocol usually begins with Vitamin D and calcium treatments. If treatment is required for low bone mineral density, Conway Human Development Center usually starts with bisphosphonates. B oniva and Fosamax are the two most common bisphosphonates used at ConwayHuman DevelopmentCenter. Other therapies for low bone mineral density are also used. Tr. 6408 (L. Henderson).
When a resi dent experiences a fract ure at Conway Human Development Center, Linda Henderson does a clinical audit. She assesses the risk of osteopor osis and audits the resident’s
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medical records to see if bone fractures have occurred before. Henderson then reviews the results of any DEXA scans; examines the types of interventions that have been performed; and reviews any medications related to osteoporosis that the resident receives, including calcium and Vitamin D. She also ascertains whether the resident is having acute back pain, has had an y loss of height, or has developed kyphosis. From that information, Henderson then formulates a progress note that the physician will evaluate to see whether additionalinterventions are needed. Tr. 6410 (L. Henderson).
At Conway Human Development Center, therewere twenty-one fractures reported for 2008 (the last year for which data was available at the time of trial), which translates to a rate of approximately four fractures per hundred reside nts per y ear. Tr. 4082 (T. Kastner). The only evidence of any benchmarks for comparison was Dr. Kastner’s testimony regarding a published study of the annual rates of fractures at four intermediate care facilities for the mentally retarded in New England. At those facilities, the rates of fractures ranged from 13.2 to 15.3 fractures per 100 residents per y ear. Tr. 4297 (T. Kastner). Thus, the rate of fractures at Conway Human Development Center is substantially lower than the fracture ratesat other facilities according to the only benchmark offered for comparison. Tr. 4082 (T. Kastner).27
Conway Human Development Center exercises reasonable care to prevent fractures. 8. Allegations that Conway Human Development Center Fails to Exercise
Reasonable Care to Prevent Decubitus Ulcers The greater weight of the evidence establishes that Conway Human Development Center exercises reasonable care to prevent decubitus uclers. From June of 2007 until September 16,2009,
27 Carly Crawford testified that Conway Human Development Center had an excessive number of fractures. However, as mentioned above, Crawford was not qualified to testify as an expert in that field, nor did she offer any benchmarks from which one could compare Conway Human Development Center with other institutions.
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the Center recorded seventy-seven incidents of decubitus ulcers for forty-six residents. There were thirty-one instances in 2007, twenty instances in 2008, and twenty-six instances in 2009 throug h September 16, 2009. The rate of decubitus ulcers athe Center is lowerthan in comparable facilities in the United States. Tr. 4065, 4081 (T. Kastner). Most of the decubitus ulcers do not go beyond stage two, which involves superficial redness and superficial skin break and is a stage at which the ulcer can be resolved. Tr. 3474 (M. Schmeler). No evidence was offered to show that the occurrence of decubi tus ulcers among the residents of Conway Human Development Center is excessive compared to similar populations elsewhere.28 Tr. 3470-71 (M. Schmeler).
9. Allegations that Conway Human Development Center Fails to Exercise Reasonable Care to Protect Residents from Injuries in General
Residents at Conway Human Development Ce nter do not suffer mo re frequent or more serious injuries than comparable populations in oht er settings. In 2008 and thefirst half of 2009, the injury rate at Conway Human Development Center was .41 per pers on per year. Tr. 5940 (K. Walsh). The per pe rson per year rates of specific injuries at Conway Human Development Center in 2008 and the first half of 2009 were: for cuts, .16; for fractures, .06; for bruises, .06; for bites, .02; for swellings/sprains, .03; for abrasions, .03; for burns, .00; and for other injuries, .05. Tr. 5942 (K. Walsh). Reported injury rates for other institutions range from .36 per person per year to .65 per person per year. Tr. 5941 (K. Walsh). The rate of injuryat Conway Human Development Center falls into that range. The greater weight of the evidence establishes that Conway Human Development exercises reasonable care to protect residents from injuries.
28 Carly Crawford also testified that Conway Human Development Center had an excessive number of ulcers. However, as mentioned above, Crawford was not qualified to testify as an expert in that field, nor did she offer any benchmarks from which one could compare Conway Human Development Center with other institutions.
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10. Allegations that Residents of Conway Human Development Center Die at an Early Age Due to Poor Conditions in General
Contrary to the plaintiff’s allegations, the greater weight of the evidence does not establish that residents of Conway Human Development Center die at an early age because of substandard care.
Over a two-year period, twenty-two residents of Conway Human Development Center died. The average age of death at the Ce nter during those two y ears was 46.5 y ears. Tr. 3772 (E. Mikkelsen). Dr. M ikkelsen testified that the average age of deat h at Conway Human Development Center was lower than the average age of death at facilities in Massachusetts and Connecticut, from which he concluded that residents of Conway Human Development Center die at a young age due to substandard care. Tr. 3917-18 (E. Mikkelsen). Dr. Mikkelsen’s reasoning is flawed, however, because the Massachusetts and Connecticut facilities provide services only to an elderly population—the residents at those facilities were older than 46.5 years of age, so of course their average age of death is higher than 46.5. In contrast, Dr. Kastner testified that the mortality rate at the facilities in Massac husetts and Connecticut was hig her than the mort ality rate in Conway Human Development Center, which also would be expected because those facilities serve an older population. Tr. 3980, 4096-97 (T. Kastner). Theafcilities in Massachusettsand Connecticut are not comparable to Conway Human Development Center with respect to a cri tical risk factor for death—age—so these comparisons prove nothing.
The national mortality rate for intermediate care facilities is twenty-two per thousand per year. Tr. 3980, 4089, 4098 (T. Kastner). Themortality rate at ConwayHuman Development Center is twenty-two per thousand per year. Tr. 3980, 4089, 4098 (T. Kastner). Thus, the mortalityrate at Conway Human Development Center coincides with the national average for i ntermediate care
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facilities. The greater weight of t he evidence fails to establish that residents of Conway Human
Development Center are exposed to conditions that cause early deaths. 11. Conclusion as to Whether Conway Human Development Center Provides a Reasonably Safe Environment For all of the reasons that have been stated, the greater weight of the evidence establishes that
Conway Human Development Center does not depart from generally accepted practices in its efforts to keep residents safe and fr ee from undue restraint. Conway Human Development Center is a reasonably safe facility that does not use undue restraint. C. FINDINGS OF FACT REGARDING ALLEGATIONS THAT CONWAY
HUMAN DEVELOPMENT CENTER VIOLATES THE IN TEGRATION MANDATE OF THE AMERICANS WITH DISABILITIES ACT The plaintiff’s second claim for relief alleges that Conway Human Development Center violates the Americans with Disabilities Act. Specifically, the plaintiff claims that the Center is not the least restrictive, most inte grated setting appropriate for its r esidents; fails to g ive adequate information to parents and g uardians about less restrictive alte rnatives; and fails to exercise professional judgment in making its determinations as to whether the Center is the least restrictive setting for its residents. The greater weight of the evidence does not support these allegations. As mentioned above, Conway Human Development Center is certified by the Centers for Medicare and Medicaid as an intermediate care facility for the mentally retarded, which means that it is funded throug h Medicaid. Medicaid is a program through which the federal g overnment provides financial assistance to states so that they can provide medical care to needy persons.29 In
29 See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502, 110 S. Ct. 2510, 2513, 110 L. Ed. 2d 455 (1990).
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order to participate, a state must submit a plan that satisfies certain requirements of the Medicaid program. However, the Secretary of the United States Department of Health and Human Services is authorized to waive those requirements so that states can create programs that provide Medicaidfunded services to persons with long -term disabilities in noninstit utional settings. 42 U.S.C. § 1396n(c). Such programs are known as home and community based waiver programs, or simply waiver programs. If a state chooses to offer Medicaid-funded services through a waiver program, the state must apply to the Centers for M edicare and M edicaid Services for a wai ver of t he requirements of the Medicaid program that otherwise would be imposed.
Arkansas has a Medicaid hom e and community based waiver prog ram for persons with developmental disabilities. Pe rsons who me et the disability requirements for admission to a n intermediate care facility for the mentally retarded and the Medicaid income eligibility requirements may qualify to participate in the waiver program. Tr. 1412-15 (C. Cromer). The waiver program provides an alternative to insti tutionalization. Defs.’ Ex. 410 at 2. W aiver services in Arkansas include case management, supported employment, supported living, specialized medical supplies, adaptive equipment, community transition services, and other services. Tr. 1415-18 (C. Cromer); Defs.’ Ex. 410 at 22-38. Providers of waiver services in Arkansas are licensed by the Divison of Developmental Disability Services and are compensated according to a daily rate not to exceed $176 per day for supportive living or $391.95 per day for persons who require the highest level of care. Tr. 806 (J. Green); Tr. 1418, 1429-30 (C. Cromer).
A state must apply for a certain number of “slots” when it applies for approval for a waiver program. Tr. 750-52 (J. Green). The number of “slots” is determined by the funds available to pay for services. Tr. 752 (J. Green). Arkansas has4083 “slots,” which means that it serves 4083 persons
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through its waiver program. Tr. 1426 (C. Cromer). Althoug h the plaintiff alleges that Arkansas promotes institutionalization of persons with developmental disabilities, the number of persons served in the Arkansas waiver program is four times greater than the number of persons served in the Arkansas human development centers.
When a person contacts the Division ofDevelopmental Disability Services to inquire about obtaining services, that person isgiven a choice of services form that permits the person to applyto receive services from a human development center, through the waiver program, or both. Tr. 1452 (C. Cromer); Tr. 6776 (A. Green). I f a person qua lifies for services, that person is placed on a waiting list. Tr. 1452 (C. Cromer). In 2007, approximately 700 persons were on a waiting list to obtain services in the Arkansas wai ver program. Tr. 778-79 (J . Green). As of April of 2010, approximately 1400 persons were on the waiting list. Tr. 779 (J. Green). At the time of trial, 1600 or 1700 persons were on the waiti ng list for waiver services in Arkansas. Tr. 779 (J . Green); Tr. 1441 (C. Cromer). Residents of a human development center who seek waiver services are given priority, which is to say that if the parent or guardian of a resident of a human development center seeks placement for the child or ward in waiver services, that resident will go to the top of the waiting list for waiver services.30 Tr. 695 (A. Richardson); Tr. 780(J. Green); Tr. 4050 (T. Kastner); Tr. 6784 (A. Green).
30 The plaintiff places a sinister interpretation on the fact that residents of human development centers are given priority, contending that it encourages parents and guardians to admit their children and wards to a human development center so as to attain priority on the waiting list for waiver services, but there is no evidence that any parent or guardian has sought to have a child or ward admitted to a human development center in order to receive priority on the waiting list for waiver services. Tr. 4310 (T. Kastner).
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1. Allegations that Conway Human Development Center Is Not the Least Restrictive, Most Integrated Placement Alternative Appropriate for its Residents
The plaintiff alleges that residents of Conway Human Development Center are segregated in a restrictive environment where they are deprived of the opportunity to interact with nondisabled persons, whereas, according to the plaintiff, many, if not all of them, could be served in more integrated settings. Much of the presentation at trial discussed this issue in terms that presupposed the outcome: the alternatives were described as “institutionalization” at Conway Human Development Center or “community placement” through waiver services. “Community placement” is a term that implies a more integrated, less restrictive setting than does the term “institution,” but it does not follow from the use of these terms that a resident automatically will have a greater degree of interaction in community placement, i.e., with a waiver provider, than in an institution such as Conway Human Development Center. The evidence establishes that residents of Conway Human Development Center do interact with nondisabled persons—the Center is not a prison with inmates barred from interaction with the outside world; a nd conversely, the evidence establishes that placement with a waiver provider does not guarantee any amount of interaction with nondisabled persons.
Residents of Conway Human Development Center participate in activities outside of the facility. As of July 31, 2009, eleven residents worked at jobs off campus. Tr. 534 (A. Richardson); Tr. 6731 (B. Brewer); Pl.’s Ex . 229. Some of the residents attend summer progr ams at the University of Central Arkansas . Tr. 504 (S. Murphy ). Many go off campus for recreational activities. Tr. 504 (S. Murphy). Off-campus activities include, but are not limited to, going to the movies, eating out, shopping, bowling, fishing, going to parks, going to the state fair, going to the
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library, attending athletic events at a local university, attending church, going on boy scout outings, going to pet therapy, and participating in the Special Olympics. Tr. 5958-59 (K. Walsh); Tr. 6732 (B. Brewer); Tr. 6828 (M. Black); Pl.’s Ex. 230. During the first six months of 2009, residents of Conway Human Development Cent er participated in 305 off-cam pus activities sponsored by the Center. Tr. 5958-59 (K. Walsh).
In addition to off-campus activities sponsored by the Center, residents of Conway Human Development Center go off campus for visits withfamily and friends, sometimes duringthe dayand sometimes overnight or over a weekend or so me other ex tended period of ti me. Tr. 3232 (E. Stoddard); Tr. 3284 (M. Catr on); Tr. 6828 (M. Black); Tr. 6844-45 (B . Landen). These interactions with persons off campus can be be neficial, enriching experiences for t he Center’s residents. Tr. 3259 (E. Stoddard). More importa ntly, these interactions render life at Conway Human Development Center less restrictive and more integrated for residents.
Conway Human Development Center also sponsors a panoply of on-campus activities, including but not limited to arts and crafts, bi ngo, chapel, Connect F our, cookouts, gymnasium activities, movies, miniature golf, and pizza parties. Tr. 5959-60 (K. Walsh). During the first quarter of 2009, there were 592on-campus activities. Tr. 5959 (K.Walsh). Nondisabled volunteers also come to Conway Human Development Center to visit and work with the residents. Pl.’s Ex. 1227.
The evidence does est ablish that many, if not all, of the residents of Conway Human Development Center could be served by organizations that provide services through the Arkansas home and community based waiver program. Aft er reviewing approximately forty individual program plans of residents of Conway Human Development Center, the plaintiff’s expert Antoinette
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Richardson testified that many of them could be considered for the possibility of placement with a provider of waiver services. Tr. 528 (A. Richardson). Similarly, four officers of organizations that provide waiver services in Arkansas reviewed approximately forty-six randomly selected individual program plans of residents of Conway Human Development Centerand concluded that many, if not all, of them could be served through the waiver program.31 Tr. 868-99 (P. Bland); Tr. 1353-75 (C. Alberding); Tr. 1526-27 (K. Vire); Tr.1875-76 (J. Lambert).
Although the defense attempted in some measure to discredit this testimony, that some and perhaps all of the residents of Conway Human Development Center could receive services through the waiver program cannot seriously be denied. Indeed, Calvin Price, the superintendent of Conway Human Development Center, when asked how many of the residents of the Center could be served through the waiver prog ram, testified, “Maybe they all could w ith the proper supports . . . . I possibly think that a lot of our individuals could live in the community if they had the appropriate resources.” Tr. 1714 (C. Price). That m any, if not all, of the residents at Conway Human Development Center couldbe served bywaiver providers does not, however, ipso facto establish that a waiver provider is the appropriate placement for a specific resident or that the resident would have a greater degree of interaction with nondisabled persons in the waiver program.
Richardson testified that she toured a small intermediate care facility in Central Arkansas, as well as the Faulkner County Day School, Easter Seals in Little Rock, United Cerebral Palsy in Little Rock, and Pathfinders in Jacksonville. Tr. 576, 590-91 (A. Richardson). She testified that
31 Those four persons were Pamela Bland, Executive Director of First Step, Inc.; Cindy Alberding, Executive Director of Independent Case Management; Keith Vire, Ph.D., Chief Executive Officer of Arkansas Support Network; and Jeff Lambert, Assistant Executive Director for programs for Bost Incorporated.
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some of these providers could provdi e services such as those needed by residents of Conway Human Development Center. Tr. 592 (A. Richardson). She did not, however, testify that any of these placement alternatives would be the appropriate placement for any specific resident of Conway Human Development Center, nor d id she testify that any specific resident of C onway Human Development Center would have a g reater degree of interaction with nondisabled persons if that resident received services at th e smaller intermediate care facility for the mentally retarded or through one of the providers of waiver services.
Richardson also visited a former resident of Conway Human Development Center who had been discharged and was livingin an apartment withstaffing and nursing help available. Tr. 575 (A. Richardson). The former resident required a lift to be transferred from a bed to a chair, as well as special arrangements for bathing and assistance with eating, dressing, and other such necessities of daily life. Tr. 575 (A. Richardson.) Richardson’s testimonydid not comparethe extent to which the former resident interacted with nondisabled pers ons while living alone in an apartment with the extent to which she interacted with nondisabledpersons while living at the Center, nor isit obvious that this former resident interacts with nondisabled persons to agreater degree while living alone in an apartment than she did while living at Conway Human Development Center.
Richardson admitted that “some people can be in a fairly restrictive setting even in a community placement.” Tr. 693 (A. R ichardson). She also admitted that some people have left residential facilities, lived alone in an apartment, and never integrated at all into the community. Tr. 693 (A. Richardson). Richardson acknowledged that each resident should be studied individually in order to determine whether thatresident should be placed with a provider of waiver services, and she admitted that she had not performed that type of study. Tr. 700,708 (A. Richardson). Thus, just
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as it is an error to assume that because Conway Human Development Center is an institution its residents have no interac tion with nondisabled persons, so too is it an error to assu me that a community placement ipso facto precludes the possibility of isolation or automatically provides more interaction with nondisabled persons than an institutional setting.
The testimony of some of the parents of Conway Human Development Center residents highlights the importance of making an indivi dualized determination regarding the appropriate placement for a developmentally disabled person. The testimony of the parents also makes clear that it is a mistake to assume that every disabled person would have more interaction with nondisabled persons through the waiver program than at Conway Human Development Center.
Alan Fortney, speaking of his stepdaughter who resides at Conway Human Development Center, testified:
She likes a lot of people interaction . . . a lot of people say community programs, living on your own and all this kind of stuffis the way to go. It would drive her nuts to live either by herself or [with only] one or two people. She likes a lot of people and a lot of interaction. W hile we were on this waiver program list, we even considered HUD housing and we came to the realization . . . that wo uld drive her nuts. She would not be able to handle that. Tr. 1501-02 (A. Fortney). It is apparent that the Fortneys have carefullyconsidered theneeds of their daughter and have concluded that Conway Human Development Center is the most appropriate place for her. They have also conc luded, based on their daug hter’s individual characteristics, that placement with a waiver provider would not provide their daughter a greater degree of interaction with nondisabled peers. Another parent, Melissa Catron, testified that her son lived at home and attended public school or a community school until he was fifteen , but “[h]e never was integrated into a regular classroom, except for . . . assemblies or thing s like that. He didn’t to lerate being around normal
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children.” Tr. 3263 (M. Catron). As he got older, his behavior problems got worse. Tr. 3263-64 (M. Catron). His violent outbursts even tually reached the point that the Catrons could no long er keep him at home. Tr. 3268-69 (M. Catron). Afterseveral years in the waiver program, the Catrons placed their son at Conway Human Development Center, and they have found that he does better with other disabled children than with nondisabled children.32 Tr. 3264-65, 3268-69 (M. Catron). Catron also testified that Conway Human Development Center is the appropriate placement for her son, rather than placement with a waiver provider, in part because
he doesn’t travel well. The fact that all of his classrooms are right there close to where he is, his doctors are right there where he is, the dentist, everything he needs is right there, he handles that transition much better that way than he would in the community. From experience, I just really don’t think that that would be . . . the best option for him. Tr. 3270 (M. Catron). Thus, the Catrons have determined based on their knowledge of their child that Conway Human Development Center is the appropriate placement for him rather than sending him back to a waiver provider. Earline Stoddard made the pointconcisely when asked oncross-examination whether she had found some providers in the community that were not good: “Not where I’d want my son to be. Might be all right for someone else’s child, but not for mine.” Tr. 3255 (E. Stoddard). As Angela Green of Conway Human Development Center testified, “[E]ach person is [an] individual. They have individual needs, they have their own preferences.” Tr. 6764 (A . Green). Any decision regarding the least restrictive placement appropriate for a developmentally disabled
32 Catron’s experience is not unique. As Price testified, many of the residents of Conway Human Development Center previously received services through a waiver provider but were referred to Conway Human Development Center as a more appropriate placement. Tr. 1714-15 (C. Price); see also Tr. 5607-08 (B. Gale).
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person must be based on that person’s individual needs and individual preferences, as demonstrated by the testimony of the parents, Angela Green, and others.
No evidence was present ed that Conway Human Development Center has refused t o discharge a resident upon request by the parent or guardian or refused to assist in a placement with a provider of waiver services. If a parent or guardian of a resident of the Center requests placement with a provider of waiver services, staff will attempt to find one. Tr. 618 (A. Richardson). Residents who seek discharge from the Center are discharged without significant delay. Tr. 4049 (T. Kastner). From June of 2007 to July of 2009, eighteen residents were discharged. Seven of those residents were discharged to another hum an development center. S ix were di scharged to the care of organizations that provide waiver services. Five were discharged to their homes. Pl.’s Ex. 271. In the two years before trial, eight persons were discharged to waiver services. Tr. 6789-91 (A.Green). Conway Human Development Center does not have a waiting list of residents seeking discharge. Tr. 4049, 4331 (T. Kastner).
That residents of ConwayHuman Development Centercould be served by organizations that provide waiver services does not establish that the residents would have a g reater degree of interaction with nondisabled persons if they received services from a waiver provider, nor does it establish that services offered by the waiver provider are the appropriate services for any specific resident. The plaintiff offered no evidence that any specific placement with a provider of waiver services was the appropriate placement for any specific resident of Conway Human Development Center, nor did the plaintiff offer anyevidence that any specific resident would have a greater degree of interaction with nondisabled persons if that resident were placed in a particular program of a waiver services provider. The plaintiff failed to prove that Conway Human Development Center is
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not the least restrictive, most integrated setting appropriate to the needs of any specific resident. 2. Allegations that Conw ay Human Development Center Fails to Gi ve Adequate Information to Parents and G uardians Regarding Waiver Services The plaintiff alleges that ConwayHuman Development Center does notprovide parents and
guardians with adequate information regarding waiver services, but the evidence proves that it does. Before each annual interdisciplinary team meeting, Conway Human Development Center
sends to the parent or guardian a brochure explaining services available through Arkansas’s waiver program, a list of the providers of waiver services in the State of Arkansas, and a list of waiver providers in the countywhere the resident’s familylives. Tr. 501-02, 4898-99 (S. Murphy); Tr. 3244 (E. Stoddard); Tr. 6776 (A. Green). The per county information describes the services provided by each provider and includes the locations of those services as well as contact information for those services. Tr. 4899 (S. Murphy); Tr. 6776-77 (A. Green). ConwayHuman Development Centeralso sends each parent or guardian a choice of services form on which the parent or guardian can choose whether to receive services through the waiver program or from the Center. Tr. 847, 6777-78 (A. Green); Pl.’s Ex. 294; Defs.’ Ex. 406.
At the resident’s annual interdisciplinary team meeting, staff of the Center discuss whether the Center is the least restrictive, most integrated placement appropriate for serving the needs of the resident. Tr. 6728-29 (B. Brewer). As a part of that discussion, staff members ask the parent or guardian if he or she has received the brochure describing the waiver program and the list of waiver providers. Staff members also ask the parent or guardian if he or she is interested in pursuing waiver services. Tr. 502, 4899 (S. Murphy); Tr. 1476 (B. Brewer). Members of the staff at ConwayHuman Development Center provide a parent or guardian information to see whether the parent or guardian
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is interested in waiver services. Tr. 3244 (E. Stoddard). Members of the staff at Conway Human Development Center take steps beyond the annual
interdisciplinary team meeting to ensure that parents and guardians are informed. Whenever the Center becomes aware that a waiver provider has an opening in a location near the familyof one of its residents, the Center notifies the family of that opening. Tr. 529, 556 (A. Richardson); Tr. 840 (A. Green); Pl.’s Ex. 264. In the spring of 2010, the Center invited all of the waiver providers in the State of Arkansas to the campus during a meeting of Friends and Families of Care Facilities Residents, the statewide parent organization, so that the waiver providers could make information about their services available toparents and guardians. Tr. 841, 6777 (A. Green); Tr. 923 (P. Bland); Tr. 1338 (C. Alberding); Tr. 5065-66 (L. Taylor).
Parents and guardians also learnabout alternative services through the two parent association groups and through social workers in their counties. Tr. 853 (A. Green). Many of the parents and guardians have looked into alte rnative services before or during placement at C onway Human Development Center. Tr. 853 (A. Green); Tr . 3239, 3243, 3245 (E. Stoddard). They are wellinformed as to the availability of waiver service. Tr. 4050-51 (T. Kastner). Parents and guardians of residents of Conway Human Development Center make informed decisions as t o whether residents should be treated at the Center or di scharged to an al ternative placement. Tr. 853 (A. Green); Tr. 4008 (T. Kastner).
Conway Human Development Ce nter does not prevent any resident from moving to an alternative placement. The Center adequately informs parents and guardians of the nature and scope of the home and community based waiver prog ram in Arkansas, and it provides the parents and guardians with a comprehensive list ofwaiver providers, including contact information. The greater
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weight of the evidence establishes that Conway Human Development Ce nter provides adequate information to parents and g uardians to enable them to make informed decisions regarding placement.
3. Allegations that the Staf f Members at Conw ay Human Development Center Fail to Exercise Professional Judgment in Determinations as to the Least Restrictive Placement Alternative
Finally, the greater weight of the evidence establishes that staff members at Conway Human Development Center make professional judgments in determining the least restrictive placement appropriate for each resident. The members of the interdisciplinary teams, including the parents and guardians, typically agree that Conway Human Development Center is the least restrictive placement alternative appropriate for serving the needs of the residents. Tr. 482, 497 (S. Murphy); Tr. 837 (A. Green); Tr. 1464 (L. Brewer); Tr. 6729-30 (B. Brewer). Although the professionals often do not recommend placement with a waiver provider unless requested to do so bythe parents or guardians, Tr. 402 (J. Weaver); Tr. 547 (A. Richardson); Tr. 836-37 (A. Green), they frequently encourage guardians to consider placement with waiver providers, Tr. 6785 (A. Green), and they have recommended placement with a waiver provider without a prior request from a parent or guardian, Tr. 4896-97 (S. Murphy); Tr. 6729 (B. Brewer). O n at least two occasions, professionals at the Center have recommended community placement when the parent or guardian disagreed. Tr. 855 (A. Green). The professi onals exercise professional judgment in determining whether Conway Human Development Center is the least restrictive, most integrated placement alternative appropriate to serve its residents’ needs. Tr. 4007-08, 4041, 4086-88, 4329, 4403 (T. Kastner); Tr. 5999-6001 (K. Walsh).
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D. ALLEGATIONS THAT CONWAY HUMAN DEVELOPMENT CENTER VIOLATES THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT The plaintiff’s third claim for relief is for al leged violations of t he Individuals with
Disabilities Education Act, which requires certain institutions to provide a free appropriate public education in the least restrictivesetting appropriate to school-aged children with disabilities. At the time of trial, Conway Human Development Center had forty-eight school-aged residents and a total of fifty-three children in its special education classes.33 Tr. 5096 (D. Nye).
The parties presented conflicting expert testimony on the issue of whether Conway Human Development Center complies with the Individuals with Disabilities Education Act. The plaintiff called as an expert witness Susan Thibadeau, Ph.D., while the defendants called Derek Nye, Ph.D., and Bruce Gale, Ph.D. All three were qualified as experts and all three testified credibly.
Dr. Thibadeau’s ultimate conclusion was that Conway Human Development Center did not meet its obligation under the Individuals with Disabilities Education Act to provide each child with a free appropriate public education. Tr. 2176 (S. Thibadeau).She testified that manyof the children were receiving only ninety minutes per day of special education services, or 450 minutes per week, which she believed was inadequate. Tr. 2176, 2187 (S. Thibadeau). Althoug h the students, according to Dr. Thibadeau, nominally spent more than six hours per day in special education services, much of that time was actually spent in habilitation classes that were neither taught nor supervised by special educa tion teachers. Tr. 2193, 2221-22 (S . Thibadeau). F urthermore, Dr. Thibadeau did not believe that the special education teachers at Conway Human Development Center received adequate supervision or sufficient ongoing training. Tr. 2182-83, 2336-40
33 Five of the children were at Conway Human Development Center on respite, or shortterm, status and were not actually residents of the Center. Tr. 5096 (D. Nye).
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(S. Thibadeau). Dr. Thibadeau also testified that Conway Human Development Center did not educate
children in the least restrictive environment, as required by the Individuals with Disa bilities Education Act. She testified that several of the children had mild cognitive disabilities and came to Conway Human Development Center because of behavioral problems, but with the improvement of the behavioral problems at the Center, she believed that those children could transition to a less restrictive environment. Tr. 2181, 2304-13 (S. Thibadeau).
In addition, Dr. Thibadeau criticized the assessment test used at Conway Human Development Center and the quality of the individualized education plans, including the transition plans. Tr. 2177, 2818-82, 2222-40 (S. Thibadeau). Asa part of her criticism of thetransition plans, Dr. Thibadeau testified that there was no i ndication that adult service agencies participated in transition planning. Tr. 2299 (S . Thibadeau). Dr. Thibadeau also “had concerns” about the “integration of different therapies,” saying that the psychological examiners did not spend enough time in the classrooms. Tr. 2180 (S. Thibadeau). She also “had some concerns” about the students’ “quality of life,” referring specifically to the fact that nineteen of the forty-five children whose records she reviewed were not toilet trained and several were eatingchopped or pureed food instead of being taught to eat more slowly. Tr. 2180-81 (S. Thibadeau).
Needless to say, the experts for the defendants disagreed with Dr. Thibadeau’s conclusions. Their ultimate conclusion was that Conway Human Development Center complied with the Individuals with Disabilities Education Act and specificallythat it provided a freeappropriate public education. Tr. 5097 (D. Ny e); Tr. 5585, 5659, 5690 (B . Gale). Contrary to Dr. Thibadeau, they testified that the amountof time spent in special education classes each daywas adequate to comply
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with the requirements of the Individuals with Disabilities Education Act. Tr. 5100-01, 5152-53 (D. Nye); Tr. 5551-53 (B. Gale). They disagreed that the assessment tool used by the Center was inappropriate. Tr. 5156-57 (D. Nye); Tr. 5587 (B. Gale). Dr. Nye testified that Conway Human Development Center is the least restrictive environment for the children there.34 Tr. 5155 (D. Nye).
The Arkansas Department ofEducation is charged with monitoring schools in Arkansas and enforcing compliance with the Individuals with Disabilities Education Act. I n January of 2010—after Dr. Thibadeau had comp leted her report—the Arkansas Department of Education officially investigated Conway Human Development Center for compliance with that Act. The Arkansas Department of Education issued its official report on June 16, 2010, in the form of a letter to Calvin Price, Superintendent of the Center. Tr. 2988 (M. Harding); Pl.’s Ex. 1104. The report found that Conway Human Development Center wa s in su bstantial compliance with the least restrictive environment requirements of the Individuals with Disabilities Education Act, as well as some of the other significant requirements of t he Act, but that there were fi fteen areas of noncompliance. Pl.’s Ex. 1104.
Several of the areas of noncom pliance involved procedural or technical requirements that readily can be remedied. Tr. 5167 (D. Nye). For example, Conway Human Development Center was found not to be in compliancewith the requirementthat evaluation procedures be completedand a written report submitted to the Arknasas Department of Educationwithin sixty days from receiving formal consent from a parent orguardian. Pl.’s Ex. 1104 at 1; Tr. 2995 (M.Harding). Another area of noncompliance related to the fact that in its evaluations the Center used categories applicable to the Medicaid program rather than categories applicable to theIndividuals with Disabilities Education
34 Dr. Gale was not called as an expert on the least restrictive environment issue. 73

Act. An example of this type of noncompliance given at trial was that the Center would classify a child as having cerebral palsy, whereas the proper category for special education purposes would be “health impaired” or “multiply disabled.” Tr. 2996 (M. Harding).
Not all of the criticisms by the Arkansas Department of Education are merely technical. First, the Arkansas Department of Education found that the individualiz ed education pla ns at Conway Human Development Center did not suffi ciently take into account sp ecial factors that impede a child’s learning, such as m aladaptive behaviors, lack of Eng lish proficiency, impaired vision or hearing, and the like; did not adequately address the unique needs of each child; and did not adequately plan for children’s transition after secondaryschool. Pl.’s Ex. 1104 at 2; Tr. 3000-05 (M. Harding). In regard to transition planning, it appeared that representatives of other agencies were not invited to meetings to discuss post-secondary goals and transition services. Tr. 2990-92 (M. Harding); Pl.’s Ex. 1104. Second, the Arkansas Department of Education found that Conway Human Development Center failed to provide a free appropriate public education because it failed to meet the required ratio of teachers to pupils . Tr. 3009-10 (M. Harding ). For students whose primary program is special education, the teacher to pupil ratio should be one to fifteen, one to ten, or one to six, depending on how much time, attention, and related services each child needs. Tr. 3010 (M. Harding). Although the record is not as explicit on this point as the Court would like, it appears that for most of the children at Conway Human Development Center the requirement is no more than six pupils to every one teacher; the Center had more than six pupils per teacher. Third, the Arkansas Department of Education found that Conway Human Development Center was not providing a free appropri ate public education because children did not spend suffi cient time in school receiving special education services. The Arkansas Department of Education seemed to agree
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with Dr. Thibadeau that many of the children at Conway Human Development Center were receiving only ninety minutes per dayof special education. Tr. 3012-14 (M. Harding); Pl.’s Ex. 1210. Fourth, the Arkansas Department of Education found that Conway Human Development Center failed to provide a free appropriate public education because it failed to adopt “promising educational practices proven effective through research and demonstration for the provision of special education instruction.” Tr. 3015 (M. Harding); Pl.’s Ex. 1104 at 15. As explained at trial, this finding means that teachers at Conway Human Development Center were not acquainted with some of the more current types of strategies, interventions, and programs that can be effective with children like those served at the Center, and no system was in place to keep teachers current. Tr. 3017 (M. Harding).
In short, the Arkansas Department of E ducation found that Conway Human Development Center did not adequately plan special education for each child, did not provide the children with adequate time in special education classes, did not provide an adequate number of teachers, and did not provide for continuing education adequate to enable the teachers to do their job well.
As noted above, the monitoring by the Arkansas Department of Education was conducted after Dr. Thibadeau had submitted her report, and the persons who conducted the monitoring reviewed Dr. Thibadeau’s report. Tr. 3033 (M. Harding). It is apparent that the monitors from the Arkansas Department of Education examined the program at Conway Human Development Center with a view toward determiningwhether the criticisms made byDr. Thibadeau were accurate or not, and they did so using a process that was systematic and impartial. Tr. 3026-33 (M. Harding). They confirmed many but not all of Dr. Thibadeau’s criticisms. After considering all of the evidence, the Court is persuaded that the findings of the Arkansas Department of Education are true. The finding that Conway Human Development Center educates children in the least restrictive environment is
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supported not only by the testimony of Dr. Ny e but also by the determination of each child’s individual education plan team—a team that consists of the persons who are best situated to make that decision regarding that child. The findings that Conway Human Development Center has failed to provide adequate plansand has failed to includeother agencies in transition planningis supported by the testimony of Dr. Thibadeau. The finding that children spend too little time in spe cial education classes is supported bythe testimony of Dr. Thibadeau. The finding that teachers are not given appropriate continuing education is supported by the testimony of Dr. Thibadeau. Finally, as to the finding that the teacher topupil ratio was inadequate, it is within the province of the Arkansas Department of Education to set a standard for the teacher to pupil ratio inasmuch as one element of the definition of “free appropriate public education” is c ompliance with standards of t he state educational agency. 20 U.S.C. § 1401(9). The greater weight of the evidence supports the findings of the Arkansas Department of Education, as described above, so those findings are adopted as the findings of this Court.
In response to the letter of noncompliance, Conway Human Deve lopment Center was required to submit a corrective action plan. The process of submitting the corrective action plan had begun before trial, Tr. 3037 (M.Harding), but was continuing at the time of trial. Tr. 6503 (.JBuck); Tr. 6881 (C. Price); Defs.’ Ex. JB-2. At the time of trial, the Center had added special education instruction times and dev eloped new pupil schedules. Tr. 2117-18 (S. Milum); Tr. 3047 (M. Harding). Additional special education t eachers had been hired. Tr. 3047 (M. Harding). Conway Human Development Center was in the process of hiring additional staff. Defs.’ Ex. JB-2 at 4. The Center was al so changing its professional development policies to br ing them into compliance. Defs.’ Ex. JB-2 at 4.
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When the trial concluded and the record closed, the Arkansas Department of Education had not yet determined whether the corrective action taken by Conway Human Development Center would be sufficient to bring the Center’s speci al education program into c ompliance with the Individuals with Disabilities Education Act. The process was ongoing and was not scheduled to be completed until sometime after trial. Nonetheless, the evidence was sufficient to show that the Arkansas Department of Education will ensure that the appropriate corrective action is taken to bring the Center’s special education program into c ompliance with the Individuals with Disa bilities Education Act. Although the monitors from the Arkansas Department of Education did not review the file of every child at Conway Human Development Center, in the corrective action process, the Center will be required to review the programs for all similarly situated children and correct them. Tr. 3051 (M. Harding). As Marcia Harding testified, “[W]e set out corrective actions, and we go in and assure that it gets corrected.” Tr. 3034 (M. Harding). The Court believes her.
II. CONCLUSIONS OF LAW A. CONCLUSIONS OF LAW REGARDING THE PLAINTIFF’S STANDING The Civil Rights of Institutionalized Persons Act authorizes the Attorney General to institute a civil action in the name of the United States to obtain “such equitable relief as may be appropriate to insure the minimum corrective measures necessary” to guarantee that institutionalized persons are not deprived of rights, privileges, or immunities secured by the Constitution orthe laws of the United States. 42 U.S.C. § 1997a(a) (2006). Conway Human Development Center is an institution as defined in the Civil Rights of Institutionalized Persons Act. 42 U.S.C. § 1997. The United States has standing to bring this action.
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B. CONCLUSIONS OF LAW REGARDING THE PLAINTIFF’S FOURTEENTH AMENDMENT CLAIMS
The Supreme Court has held that when a menatlly retarded person isinvoluntarily committed
to a state institution, the state has certainobligations under the Fourteenth Amendment. Youngberg
v. Romeo, 457 U.S. 307, 102 S. Ct. 2452 , 73 L. Ed. 2d 28 (1982). 35 According to Youngberg, a
mentally retarded person involuntarily committed to a state institution has the rig ht to minimally
adequate or reasonable training to ensure safety and freedom from undue restraint. Id. at 319, 102
S. Ct. at 2460. The Court recognized:
Yet these interests [in safety and freedom from restraint] are not absolute; indeed, to some extent they are in conflict. In operating an institution such as [the one at issue in Youngberg], there are occasions in which it is necessary for the State to restrain the movement of residents – for example, to protect them as well as others from violence. Similar restraints may also be appropriate in a training program. And an institution cannot protect its residents from a ll danger of violence if it is to permit them to have any freedom of movement. The question then is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.
Id. at 319-20, 102 S. Ct. at 2460. Determining whether the rights of a mentally retarded person in
a state institution ha ve been violated requires “that the courts make certain that professional
judgment in fact was exercised. It is not appropriate for the courts to specify which of several
professionally acceptable choices should have been made.” Id. at 321, 102 S. Ct. at 2461. A
mentally retarded person in a state institution is entitled to “minimally adequate training,” defined
as “such training as may be reasonable in light of [the individual’s] liberty interests in safety and
35 The parties agree that Youngberg applies in this case, so the Court need not and will not address the issue of whether Youngberg is inapplicable because some or all of the residents of Conway Human Development Center are there voluntarily. Cf. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993).
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freedom from unreasonable restraints.” Id. at 322, 102 S. Ct. at 2461. Courts “must showdeference to the judgment exercised by a qualified professional.” Id. T he decision by a professional “is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323, 102 S. Ct. at 2462.
Applying the Youngberg standards to this case, the Court concludes that Conway Human Development Center does not violate the mandates of the Fourteenth Amendment. Conway Human Development Center provides minimally adequate training and protects the safety and freedom of its residents in a manner consistent with the standards of Youngberg. The professionals at Conway Human Development Center exercise professional judgment. Even if the professional judgment of some or all of the plaintiff’s experts were better than the professional judgment of some or all of the professionals at Conway Human Development Center, the evidence does not prove that decisions of the latter represent such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that professiona l judgment was not actually exercised. Conway Human Development Center is in compliance with the Fourteenth Amendment to the Constitution of the United States. C. CONCLUSIONS OF LAW REGARDING THE AMERICANS WITH
DISABILITIES ACT The Americans with Disabilities Act provides, in pertinent part: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, prog rams, or activities of a public entity , or be subject to discrimination by any such entity.
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42 U.S.C. § 12132. This prohibition on discrimination may require placement of persons with developmental disabilities in community settings rather than in institutions when . . . the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not oppos ed by the affected individual, and the placement can be reasonably accommodated, taking into account resources available to the State and the needs of others with mental disabilities.
Olmstead v. Zimring, 527 U.S. 581, 587, 119 S. Ct. 2176, 2181, 144L. Ed. 2d 540 (1999). A public entity must administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. Id. at 591-92, 119 S. Ct. at 2183; 28 C.F.R. § 35.130(d) (2010). The most integrated setting appropriate to the needs of a qualified individual with a disability is a setting that enables the individual with a disability to interact with nondisabled persons to the fullest extent possible. Olmstead, 527 U.S. at 592, 119 S. Ct. at 2183; 28 C.F .R. pt. 35, app. B(Mar. 15, 2011). The Americans with Disabilities Act prohibitsdiscrimination against qualified individuals, i.e., persons with disabilities who “with or without reasonable modifications to rules, policies, or practices, . . . mee[ t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Olmstead, 527 U.S. at 602, 119 S. Ct. at 2188 (quoting 42 U.S.C. § 12131(2)). A state generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements for habilitation in a community based program. Id. There is no requirement that communitybased treatment be imposed on persons who do not desireit. Olmstead, 527 U.S. at 602, 119 S. Ct. at 2188; 28 C.F.R. § 35.130(e)(1).
The plaintiff failed to prove that ConwayHuman Development Center is in violation of the Americans with Disabilities Act. The plaintiff failed to prove that Conway Human Development Center is not the most integrated setting appropriate to the needs of any specific resident. The
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plaintiff failed to prove that any alternative placement would enable any specific resident of Conway
Human Development Center to in teract with nondisabled persons to a g reater extent. The
professionals at ConwayHuman Development Center exercise reasonable professional judgment in
making recommendations for placement of the residents there. No person determined by the State’s
treatment professionals to be appropriate for community placement has been deni ed community
placement. The parents and guardians of the residents at Conway Human Development Center make
informed judgments regarding placement. No resident of Conway Human Development Center has
been denied community placement when a parent or guardian has requested such a placement.
Conway Human Development Center is not discriminating against persons with disabilities.
It is not violating the Americans with Disabilities Act.
D. CONCLUSIONS OF LAW REGARDING THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
The special education program at Conway Human Development Center is subject to the
requirements of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. The
children at Conway Human Development Center are children with disa bilities as defined in
20 U.S.C. § 1401(3). Conway Human Development Center is required to provide each child with
a free appropriate public education. 20 U.S.C. § 1412(a)(1) (2006).
The term “free appropriate public education” means special education and related services that --
(A) have been provided at public ex pense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriatepreschool, elementaryschool, or secondaryschool education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(9). Conway Human Development Center also has an obligation to educate the
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children in the least restrictive environment. Congress has defined that obligation as follows: To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). To the extent appropriate, with consent of the parents, ConwayHuman Development Center must invite the agency that likely will be responsible for providing transition services to the individual education plan meeting when a purpose of the meeting will be to consider post-secondary goals and transition services. 34 C.F.R. § 300.321(b)(3) (2007).
Conway Human Development Center educates children in the least restrictive environment, but it has failed to provide children with a free appropriate public education, and it has failed to invite agencies that provide transition services to the meetings at which post-secondary goals and transition services are discussed.
Having concluded that ConwayHuman Development Center has failed to comply fully with the Individuals with Disabilities Education Act, the issue is whether to enter an injunction. An injunction is an equitable remedy that does not issue as a matter of course. Weinberger v. RomeroBarcelo, 456 U.S. 305, 311, 102 S. Ct. 1798, 1803, 72 L. Ed. 2d 91 ( 1982); see also Salazar v. Buono, __ U.S. __, 130 S. Ct. 1803, 1816, 176 L. Ed. 2d 634 (2010). An injunction should issue only when legal remedies are inadequate and irreparable injury will occur without the injunction. Romero-Barcelo, 456 U.S. at 312, 102 S. Ct. at 1803. A court should be especially cautious when contemplating relief that implicates public interests. Salazar v. Buono, 130 S. Ct. at 1816. I n determining whether to exercise the Court’s equitable discretion to enter an injunction in a case such as this one, where Cong ress has provided a reg ulatory scheme, the Court should consider the
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regulatory scheme at issue and the enforcement mechanisms provided therein.
[C]ourt and ag ency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each actingin the performance of itsprescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of thestatute. Court and agency are the means adopted to attainthe prescribed end, and so far as ht eir duties are defined by the words of the statute,those words should be construed so as to atta in that end throug h co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if it must be, but never to be encouraged or aided by the other in the attainment of the common aim.
Hecht Co. v. Bowles, 321 U.S. 321, 330-31, 64 S. Ct. 587, 5928,8 L. Ed. 754 (1944) (quoting United
States v. Morgan, 307 U.S. 183, 191, 59 S. Ct. 795, 799, 83 L. Ed. 1211 (1939)).
The Individuals with Disab ilities Education Act imposes a duty for monitoring and
supervising compliance with the Individuals with Disabilities Education Act on a state educational
agency to be selected by the state:
(11) State educational agency responsible for general supervision (A) In general The State educational agency is responsible for ensuring that– (i) the requirements of this subchapter are met; (ii) all educational programs for children with disabilities in theState, including all such programs administered by any other State agency or local agency -(I) are under the g eneral supervision of individuals in the State who are responsible for educational programs for children with disabilities; and (II) meet the educational standards of the State educational agency[.]
20 U.S.C. § 1412(a)(11)(A).
As section 1412(a)(11)(A) makes clear, the staet agency’s responsibility to supervise special
education programs includes not only a duty to monitor but also to enforce. Section 1416(a)(1)(C)
provides that the Secretary of Education must “require States to-- (i) monitor implementation of this
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subchapter by local educational agencies; and (i i) enforce this subchapter in accordance wi th
paragraph (3) and subsection (e).” Paragraph (3) provides:
(3) Monitoring priorities The Secretary shall monitor the States, and shall require each State to monitor the local educational agencies located in the State (except the State exercise of general supervisory responsibility), using quantifiable indicators in each of the following priority areas, and using such qualitative indicators as are needed to a dequately measure performance in the following priority areas:
(A) Provision of a free appropriate public education in the least restrictive environment. (B) State exercise of g eneral supervisory authority, including child find, effective monitoring, the use of resolution sessions, mediation, voluntary binding arbitration, and a system of transition services as defined in sections 1401(34) and 1437(a)(9) of this title. (C) Disproportionate representation of racial and ethnic g roups in special education and related services, to the extent the representation is the result of inappropriate identification.
In Arkansas, the state educational agency responsible for monitoring and ensuring compliance with
the Individuals with Disabilities Education Act is the Arkansas Department of Education.
As stated above, the Arkansas Department of Education has requ ired Conway Human
Development Center to submit a corrective action plan for bringing its special education program
into compliance with the Individuals with Disabilities Education Act. The Arkansas Department of
Education will evaluate and determine whether the corrective action plan is appropriate and will
ensure that the special education program at Conway Human Development Center complies with the
Individuals with Disabilities Education Act. Therefore, it is not necessary for this Court to enter an
injunction in order to secure the rights guaranteed by the Individuals with Disabilities Education Act
to students at Conway Human Development Center.
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CONCLUSION The Court finds and concludes that ConwayHuman Development Center complies with all of the requirements of the Fourteenth Amendment and the Americans with Disabilities Act but not all of the requirements of the Individuals with Disabilities Education Act. Because Congress has provided for a st ate educational agency to enforce compliance with that Act, and becaus e the evidence established that the state educational agency here is enforcing and will enforce compliance, no injunction is necessary or appropriate. A judgment dismissing this action with prejudice will be entered separately. IT IS SO ORDERED this 8th day of June, 2011.
J. LEON HOLMES UNITED STATES DISTRICT JUDGE
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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA

PLAINTIFF

v.

No. 4:09CV00033 JLH

STATE OF ARKANSAS; MIKE BEEBE, Governor of the State of Arkansas, in his official capacity only; JOHN M. SELIG, Director of the Arkansas Department of Human Services, in his official capacity only; JAMES C. GREEN, Ph.D., Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only; and CALVIN PRICE, Superintendent of the Conway Human Development Center, in his official capacity only

DEFENDANTS

OPINION AND ORDER

The United States of America brought this action pursuant to the C ivil Rights of

Institutionalized Persons Act, 42 U.S.C. § 1997 (2006), et seq., alleging in Count I that conditions

at Conway Human Development Center are so deplorable as to violate the Fourteenth Amendment

to the Constitution of the United States; in C ount II that Conway Human Development Center

violates the integration mandate of the Americans with Disabilities Act, 42 U.S.C. § 12132 (2006);

and in Count III that Conway Human Development Center violates the rights of children guaranteed

by the Individuals with Disabilities Education Actby failing to provide themwith a free appropriate

public education in the least restrictive environment, 20 U.S.C. § 1412(a)(2006). After a six-week

trial, the Court found that Conway Hum an Development Center was in compliance with the

Fourteenth Amendment; that the plaintiff failed to prove that Conway Human Development Center

was in violation of the Americans with Disabilities Act; that Conway Human Development Center

educated children in the least restrictive environment but failed to provide a free appropriate public

education; and that no injunction was needed b ecause the agency charged wi th enforcing the

Individuals with Disabilities Education Act, the Arkansas Department of Education, would ensure that Conway Human Development Center would come into compliance. The defendants have now moved for an award of attorneys’ fees and costs.
I. Generally, successful litigants m ust pay their own attorneys’ f ees unless a statute or contractual agreement provides otherwise. See, e.g., Borntrager v. Cent. States Se. & Sw. Areas Pension Fund, 577 F.3d 913, 924 (8th Cir. 2009) (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 448, 127 S. Ct. 1199, 1203, 167 L. Ed. 2d 178 (2007)). In support of their m otion for attorneys’ fees, the de fendants invoke a provision of the Civil Rights of Institutionalized Persons Act that provides: “Inany action commenced under this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fee against the United States as part of the costs.” 42 U.S.C. § 1997a(b) (2006)1. That provision, by use of the word may, grants the Court discretion to award a reasona ble fee to the prevailing party, other than the United States, but does not explain the factors to be considered or the standards that should inform the Court’s exercise of discretion. Cf. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S. Ct. 694, 698, 54 L. Ed. 2d 648 (1978) (interpretinagsimilarly-worded attorney’s fees provision and noting that the “question in the case before usis what standard should inform a district court’s discretion in deciding whether to award attorney’s fees to a successfuldefendant[.]”). In a decision resolving a case similar to the present one, the Eleventh Circuit observed, “there must be standards
1 The defendants also cite Fed. R. Civ. P. 11, butthey admittedly have not complied with the procedure mandated by Rule 11(c)(2), so the Court will not address this rule.
2

to guide the district court’s exercise of discretion.” Johnson v. Florida, 348 F.3d 1334, 1350 (11th Cir. 2003).
No controlling precedent specifies the standards taht should informa district court’s exercise of discretion in determining whether to award attorneys’ fees to a prevailing defendant pursuant to subsection 1997a(b). The defendants contend thata prevailing defendant is presumptively entitled to attorneys’ f ees in the abse nce of special circum stances, whereas the plaintiff contends that attorneys’ fees should be a warded to a preva iling defendant only if the action was frivolous, unreasonable, or without foundation.
In Christiansburg, the Equal Employment Opportunity Commission unsuccessfully pursued a Title VII action against a private em ployer. 434 U.S. at 413-15, 98 S. Ct. at 696-97. Af ter a successful summary judgment motion, the em ployer sought attorneys’ fees under Title VII’s attorneys’ fees provision, which provided,
In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Com mission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. Id. The Supreme Court recognized that it hasalready settled upon the rule that a prevailingplaintiff in a civil rights case “should ordinarily recover anattorney’s fee unless special circumstances would render such an award unjust.” Id. at 416-17. The question inChristiansburg, however, was “what standard should inform a district court’s discretion in deciding whether to award attorneys’ fees to a successful defendant in a Title VII action.” Id. Because the attorney’s fees section provided “no indication whatever of the circumstances under which either a plaintiff or a defendant should be entitled to attorney’s fees[,]” the Court did not rely simply on the “plain meaning of the statute” to resolve the question before it. Id. at 418.
3

Instead, the Court pointed to “twostrong equitable considerations counseling an attorney’s fee award to a prevailing T itle VII plaintiff that are w holly absent in the case of a prevailing Title VII defendant.” Id. “First . . . the plaintiff is the choseninstrument of Congress to vindicate “ ‘a policy that Congress considered of the highest priority.’ ” Id. (citing Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (196)8). “Second, when a district court awards counsel fees to a prevailing plaintiff, it is awadr ing them against a violator of federal law.” Id. The Court also sifted through the sparse legislative history of the attorney’s fees provision and found evidence that Congress intended “to m ake it easier for a plaintiff of lim ited means to bring a meritorious suit” and to “ ‘deter the bringing oflawsuits without foundation’ by providing that the ‘prevailing party’—be it plaintiff or defendant—could obtain legal fees.’ ”Id. at 420 (citingGrubbs v. Butz, 548 F.2d 973, 975 (D.C. Cir. 1976)). In light of these considerations, the Supreme Court held that “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintif f’s action was f rivolous, unreasonable, or without foundation[.]” Id. at 421.
In Johnson, the Eleventh Circuit has held that the Supreme Court’s Christiansburg standard applies “to a claim for attorneys’ fees under [the Civil Rights of Institutionalized Persons Act].” 348 F.3d at 1354. The Eleventh Circuit interpreted 42 U.S.C. § 1997c(d) (2006), which provides: “In any action in which the United States joins as an intervenor under this section, the court m ay allow the prevailing party, other than the United Staets, a reasonable attorney’s fee against the United States as part of the cos ts.” Subsection 1997c(d), which controlled in Johnson, differs from subsection 1997a(b), which controls here, in thatsection 1997c authorizes the Attorney General to intervene in actions seeking relief for institutionalized persons, whereas section 1997a authorizes
4

the Attorney General to institute civil actions toobtain relief for such persons. Subsection 1997c(d) also contains an additional sentence: “Nothing inthis subsection precludes the award of attorney’s fees available under any other provisions of the United States Code.” Otherwise, the two subsections are identical. The parties her e do not argue, nor is there any apparent reason to conclude, that Congress intended different standards to apply to the effectively identical language of subsection 1997a(b) and subsection 1997c(d).
In support of their argument that the Court should not adopt theChristiansburg standard in applying subsection 1997a(b), the defendants first ponit out that the Civil Rights of Institutionalized Persons Act, unlike other civil rights statutes, only exists for the purpose of providing the United States with standing; it does not create any subs tantive rights. In addition, subsection 1997a(b) specifically disallows an award of attorney’s fees to the United States when it prevails. It follows that there can never be an attorney’s fees award to a prevailing plaintiff under the Civil Rights of Institutionalized Persons Act. Therefore, the defendants urge, the Court should not interpret its provisions in the same manner as traditional civil rights statutes.
Second, the defendants contend that the legis lative history supports the conclusion that attorney’s fees may be awarded pursuant to subsection 1997a(b) simply if a defendant prevails. The defendants rely on the House conference report on the Civil Rights of Institutionalized Persons Act which states, in pertinent part,
In both the initiation and intervention section,sthe Act makes clear the liability ofthe United States to opposing parties for attorneys’ fees whenever it loses. The award is discretionary with the court, and it is intended that the present standards used by the courts under the civil rights laws will apply. H. Conf. Rep. No. 96-897, at 12 (1980), reprinted at 1980 U.S.C.C.A.N. 832, 837. According to the defendants, the “present standards” language refers to the standard set forward in Piggie Park,
5

namely, that fees should ordinarily be awarded to the prevailing party in the absence of spec ial
circumstances. The defendants also point out that Christiansburg was decided only a few years
before the Civil Rights of Institutionalized Persons Act was enacted 2 and argue that because a
number of district court and circuit court decisions post-dating Christiansburg did not apply its
standard, Christiansburg was not “the present standards used by the courts under the civil rights
laws.”3
Third, the defendants contend that the rationale of Christiansburg is based on policies that
protect private plaintiffs who bring civil rights suits but do not apply to the Department of Justice,
as, for example, the concern that the high cost of attorneys’ fees might chill a private plaintiff’s
assertion of his civil rights. Priva te plaintiffs do not bring suit pursuant to the Civil Rights of
Institutionalized Persons Act, so, the def endants argue, the rationale behind the Christiansburg
standard does not apply to subsection 1997a(b).
Finally, the defendants contend that Geier v. Richardson, 871 F.2d 1310 (6th Cir. 1989),
supports imposition of the lower standard. In Geier, the United States intervened in a Title IX
desegregation case. After lengthy and contentiouslitigation, all parties except for the United States
2 However, the Senate report explicitly cites Christiansburg when stating that the Ci vil Rights of Institutionalized Persons Act attorneys’fees provisions are “similar to that found in Title VII of the Civil Rights Act of 1964.” S. Rep. No. 96-416, at 68 n.86 (1979), reprinted at 1980 U.S.C.C.A.N. 787, 832.
3 The plaintiff notes that most of these cases were reversed on appeal for failing to use the correct standard, namely, the one laid down in Christiansburg. Furthermore, a decision handed down by the Supreme Court becomes the law of the land, regardless of the prior state of the law or whether the decision has had time to percolate through the lower courts. Cf. Holmberg v. Parratt, 548 F.2d 745, 749 (8th Cir. 1977) (“[T]he Supreme Court has the right to enunciate a single supreme law of the land[.]”). Therefore, by the time the Civil Rights of Institutionalized Persons Act was enacted, Christiansburg was the law ofthe land regarding thestandards for a defendant’s motion for attorney’s fees in the civil rights context.
6

agreed to a consent decree. The district court denied the United States’ challenges, and awarded attorneys’ fees to the private plaintiffs as prevailing parties. The Sixth Circuit affirmed the district court’s award of attorneys’ fees.
These arguments are thoroughly and persuasively answered by the Johnson opinion. 348 F.3d at 1351-54. The Court need not reiterate Johnson’s reasoning here but will restate the most compelling argument for the proposition that the Christiansburg standard applies.
It is a well-settled precept of statutory cons truction that statutory provisions t hat are substantially the same should be interpreted similarly. See In re Norfolk S. Ry. Co., 592 F.3d 907, 912 (8th Cir. 2010) (citing Nijhawan v. Holder, 557 U.S. 29, 129 S. Ct. 2294, 2301, 174 L. Ed. 2d 22 (2009) (“Where, as here, Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations.”)); see also Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2, 109 S. Ct. 2732, 2735 n.2, 105 L. Ed. 2d 639 (1989) (“We have stated in the past that fee-shtiifng statutes’ similar language is ‘a strong indication’ that they are to be interpreted alike.”) (quotingNorthcross v. Memphis Bd. of Educ., 412 U.S. 427, 428, 93 S. Ct. 2201, 2202, 37 L. Ed. 2d 48 (1973)). TitleVII’s attorney’s fee provision, interpreted in Christiansburg, is substantially identical to subsection 1997a(b). Compare Christiansburg, 434 U.S. at 414, n.1, 98 S. Ct. at 696, n.1 (“In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Com mission or the United States, a reasonable attorney’s fee as part of the costs[.]”), with 42 U.S.C. § 1997a(b) (“In any a ction commenced under this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fee against the United States as part of the costs.”).
7

In accord with that basic rule of statut ory construction, courts have applied t he Christiansburg standard to numerous attorney’s fees provisions outside ofthe Title VII context.See, e.g., Fox v. Vice, --- U.S. ---, 131 S. C t. 2205, 2215, 180 L. Ed. 2d 45 (2011) ( Christiansburg standard applies to attorney’s fees provision of section 1988 of Title 42 of the United States Code which states: “In any action or proceeding to enf orce a provision of sections . . . of this title [or certain other titles] . . . the court, in its discretion, m ay allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .”); No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir. 2001) (Christiansburg standard applies to attorney’s fees provision of the Americans with Disabilities Act which states: “In any action or administrative proceeding commenced pursuant to this chapter, thecourt or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee . . . .”B);rooks v. Ctr. Park Assocs., 33 F.3d 585, 587 (6th Cir. 1994) ( Christiansburg standard applies to attorney’s f ees provision of the Fair housing Act which states: “Ina civil action under subsection (a) of this section, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs.”); Homeward Bound, Inc. v. Hissom Mem’l Ctr., 963 F.2d 1352, 1354 n.1 (10th Cir. 1992) (Section 1988 standards apply to tatorney’s fees provision of the Rehabilitation Act which states: “In any action or proceeding to enfo rce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .”).
Even if some of the policy considerations re levant to the issue of whether a prevailing defendant should recover attorneys’ fees under thesestatutes are not relevantto subsection 1997a(b), the language of that subsection is substantially similar to the language of those statutes. Hence, they
8

should be interpreted sim ilarly. Therefor e, this Court will interpret 42 U.S.C. § 1997a(b)
consistently with these statutes that are sim ilarly worded, which m eans that the Christiansburg
standard will guide the exercise of the Court’s discretion in deciding whether to award attorneys’
fees to the defendants.
II.
The Eighth Circuit has summarized the Christiansburg standard as follows:
A prevailing def endant . . . is entitled to attorney’s f ees only in very narrow circumstances. A pl aintiff should not be assessed his opponent’s attorney’s fees unless the district court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Even allegations that, upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, groundless, or without foundation as required by Christiansburg. Rather, so long as the plaintiff has som e basis for his claim , a prevailing defendant may not recover attorneys’ fees. Finally, we are mindful of the Supreme Court’s admonition to avoidpost hoc reasoning by concluding that, because a plaintiff did not ultim ately prevail, his action m ust have been unreasonable or without foundation.
Williams v. City of Carl Junction, Mo., 523 F.3d 841, 843 (8th Cir. 2008)(internal quotation marks
and citations omitted). Applying the Christiansburg standard, as interpreted by the Eighth Circuit,
the Court exercises its discretion not to award attorneys’ fees to the prevailing defendants in t his
case.
Beginning the analysis with Count III, the claim that Conway Human Development Center
was in violation of the Individuals with Disabilities Education Act, the Court found that that claim
had merit. Although the Court elected not to enter injunctive relief based upon testimony that the
Arkansas Department of Education would ensure that Conway Human Development Center came
into compliance with the act, by no means was the claim frivolous, unreasonable, or groundless. In
fact, it appeared from the evidence that the Arkansas Department of Education initiated its review
9

of the program at Conway Human Development Center in response to the a ction brought by the plaintiff in this case. The monitors from the Arkansas Department of Education obtained a copy of the report prepared by the plaintiff’s expert, Susan Thibadeau, Ph.D., before beginning thei r investigation at the Center and used that report to guide their investigation. As the Court found in its findings of fact following the trial, the m onitors from the Arkansas Department of Education confirmed many, though not all, of Dr. Thibadeau’s criticisms of the Center. Thus, not only did the United States meet its burden of proof on the merits of this claim, but the corrective action mandated by the Arkansas Department of Education is also a direct result of the work from the United States in this action.
Although the Court found that the plaintiff failedto meet its burden ofproof on the claimthat the Conway Human Development Center violates the integration mandate of the Americans with Disabilities Act, neither was that claim frivolous, unreasonable, or groundless. The pl aintiff contended that the Center was not the least restrictive, most integrated setting appropriate for the disabled persons who are served there; that the Cenetr failed to give adequate information to parents and guardians about less restrictive alternatives; and that the Center failed to exercise professional judgment in making its determinations as to whether the Center was the least restrictive setting for its residents. The greater weight of evidence did not support those contentions, but they were not frivolous, unreasonable, or groundless. The plai ntiff’s expert, Antoinette Richardson, and four officers of organizations that provide waiver services reviewed forty-six r andomly selected individual program plans of residents of the Center and concluded that m any, if not all of them , could be served through the waiver program. Furthermore, Calvin Price, the superintendent of the Center, testified that perhaps every individual residing at the Center “could live in the community
10

if they had the appropriate resources.” The plaitniff’s evidence was convincing to that point, but the plaintiff failed to take the nextstep and present evidence that awaiver provider was the appropriate placement for a specific resident or that a specific rseident would have a greater degree of interaction with nondisabled persons in the waiver program. That the plaintiff failed to make that showing does not, however, establish that the claim was frivolous, unreasonable, or groundless. The defendants have not proven that the plaintiff could not have made that showing had the next step been taken in the interrogation of witnesses. Cf. Marquart v. Lodge 837, 26 F.3d 842, 852 (8th Cir. 1994) (“a prevailing defendant must prove that a plaintiff’s case is frivolous, unreasonable, or groundless.”).
As to whether the staff at Conway Hum an Development Center were providing adequate information to parents and guardians regarding waiver services, and whether the staff at Conway Human Development Center were exercising professional judgment in deciding whether the Center is the least restrictive alternative for its residents, the evidence was in conflict. The United States presented evidence to show that staff members at Conway Human Development Center were not adequately informed regarding waiver services in the State of Arkansas and that they were failing to exercise professional judgm ent in m aking determinations regarding the leas t restrictive but, instead, were relying simply on the wishes of the parents and guar dians of the residents. Again, while the Court found that the greaetr weight of the evidence was infavor of the defendants on these issues, the claims of the United States were supported by evidence and had some basis.
It should be noted that some of the evidence offered in defense of the allegations in Count II resulted from changes instituted at Conway Human Development Center shortly before trial. For example, in the spring of 2010 (some five or sixmonths before trial), Conway Human Development Center for the first time invited all of the waiver providers in the State of Arkansas to the campus
11

so they could provide information about their services to parents and guardians. That evidence was relevant and admissible; and it was considered bythe Court in weighing the evidence. Nevertheless, it would seem unfair to consider improvements made by Conway Human Development Center in response to this litigation and then find that the allegations by t he plaintiff was frivolous, unreasonable, or groundless.
The more troubling issue relates to Count I, inwhich the plaintiff alleged that the conditions at Conway Human Development Center were so deplorable as to violate the Fourteenth Amendment. That claim included a broad based attack on many facets of the Center. On the merits, it was the weakest of the three claims, which, in turn, means that it is the claimthat presents the strongest case for an award of attorneys’ fees under theChristiansburg standard. Having carefully considered the evidence, weak though it was, theclaim of the United States under the Fourteenth Amendment had some basis, so the Court will not award attorney s’ fees. The plaintif f presented two qualif ied experts, Johnny Lee Matson, Ph.D., and Ram asamy Manikam, Ph.D., who testified that the psychological services offered at the Center departsubstantially from generally accepted standards in numerous respects. See Youngberg v. Romeo, 457 U.S. 307, 323, 102 S. Ct. 2452, 2462, 73 L. Ed. 2d 28 (1982). The plaintiff also presented the testimony of two highly qualified experts, Jodie Holloway, M.D., and Edwin J. Mikkelsen, M.D.., whotestified that the medical services offered by Conway Human Development Center departed from generally accepted standards in num erous respects. The Court discussed the relevant evidenceat length in its findings offact entered after the trial, so that evidence need not be recited here. Suffice it to say that, while the claim of the United States, as noted, was weak, it was not without some basis.
12

Moreover, as with Count II, in weighing th e evidence the Court consi dered conditions at Conway Human Development Center as they wereat the time of trial, which included improvements made at the Center in response to or in preparaotin for this litigation. For example, in response to the investigation by the Departm ent of Justice, Conway Hum an Development Center engaged a consultant, Kevin Walsh, Ph.D., to assist in improving the Center’s psychology department. Some of the evidence upon which the Court relied in finding for the defendants included improvements in the psychology department instituted at the behestof Dr. Walsh. As noted in the findings of fact, the use of mechanical restraints at Conway Human Development Center was troubling. Due at least in part to changes m ade at the Center in response to the Depa rtment of Justice investigation, the Center instituted changes in its practices that resulted in a marked decline in the use of mechanical restraints. Again, it would be unfair to rely on the evidence that thelives of residents at the Center had improved in response to allegations by the Department of Justice and then find that the claims of the Department of Justice were frivolous, unreasonable, or groundless.
For the reasons stated, the Court will not award attorneys’ fees to the defendants. III.
Under the Federal Rules of Civil Procedure, “[u]nelss a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). The Eighth Circuit has held that Rule 54(d) codifies a rebuttable presumption that the prevailing party is entitled to costs. Leonard v. Sw. Bell Corp. Disability Income Plan, 408 F.3d 528, 533 (8th Cir. 2005) (citingMartin v. DaimlerChrysler Corp., 251 F.3d 691, 696 (8th Cir. 2001)). The costs available under the rule are stated in 28 U.S.C. § 1920:
A judge or clerk of any court of the United States may tax as costs the following:
13

(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensations of court appointed experts, com pensation of interpreters, and salaries, fees, expenses, and costs of s pecial interpretation services under section 1828 of this title.
A bill of costs shall be f iled in the case and, upon allowance, included in the judgment or decree.
28 U.S.C. § 1920 (2006), amended by Pub. L. No. 110-406, § 6, 122 Stat. 4291, 4292 (2008). Not
all expenses of litigation are costs taxable against the losing party, and within the statutory
framework of costs eligible to be taxed, the distrcit court has discretion in determining and awarding
costs in a given case. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct.
2494, 2497, 96 L. Ed. 2d 385 (1987);Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir.
1987). The district courts m ay not tax costs beyond those expressly authorized in section 1920.
Crawford, 482 U.S. at 445, 107 S. Ct. at 2499. “Section 1920 im poses ‘rigid controls on cost-
shifting in federal courts . . . .’” Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002) (per
curiam) (citing Crawford, 482 U.S. at 444, 107 S. Ct. at 2499).
The parties have no material dispute regarding the amount of costs taxable under 28 U.S.C.
§ 1920. The defendants calculated the taxable costs as $149,545.01, whereas, accordi ng to the
plaintiff’s tally, the recoverable costs come to $150,585.01. The difference of $1,040 related to the
costs for service of process, which, upon reflection, the defendants concede are properly taxable as
costs. Thus, there is no dispute that the taxable costs come to $150,585.01.
14

The plaintiff contends that the def endants are not entitled to any costs, however, f or two reasons. First, the plaintiff contends that it prevailed on Count III, which was the count that alleged violations of the Individuals with Disabilities Education Act. The plaintiff therefore argues that the Court should decline to award costs inasmuch as both parties prevailed on some aspect of the claims. That argument fails. The Supreme Court has held that to be a prevailing party, “the plaintiff must be able to point to a resolution of the dispute wihch changes the legal relationship between itselfand the defendant.” Tex. State Teachers’ Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S. Ct. 1486, 1493, 103 L. Ed. 2d 866 (1989). “The touchsot ne of the prevailing party inquiry must be the material alteration of the legal relationship of the parties[.]” Id. at 792-93, 109 S. Ct. at 1494. “Therefore, to qualify as a prevailing party, a civirlights plaintiff must obtain at least some relief on the merits of his claim.” Farrar v. Hobby, 506 U.S. 103, 111, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992). Moreover, “the change in the relationship must be ‘judicially sanctioned’[.]” Sierra Club v. City of Little Rock, 351 F.3d 840, 845 (8th Cir. 2003). By this test, the plaintiff did not prevail on any count because the plaintiff obtained no judciially sanctioned relief. Although the Court may have discretion to deny an award of costs or reduce an award of costs for a party that prevailed on only a portion of the claims, here, the Court does not believe that it would be appropriate to reduce costs awarded to the defendants pursuant to section 1920.
Second, the plaintiff contends that the declaration s ubmitted by defense counsel did not comply with 28 U.S.C. § 1924 (2006), inasmuch as it did not expressly say that each cost “is correct and has been necessarily incurred in the case and taht the services for which fees were charged were actually and necessarily performed.” The plaintif f is correct that the declaration subm itted by defense counsel does not use the precise language required by section 1924. Defense counsel did,
15

as noted, subm it a declaration in support of the motion for attorneys’ fees and costs; and the defendants filed with the declaration appendices in which costs are itemized in detail, along with attachments that include each invoice for each expenditure sought to be recovered as a taxable cost. The supporting documentation is sufficiently detailed that the plaintiff could not only verify the amount of costs taxable under section 1920 but, asnoted above, find an additional $1,040 in taxable costs that the defendants had overlooked.
In their reply, the defendants cite The Cincinnati Ins. Co. v. Dynamic Dev. Grp., LLC, 336 F. Supp. 2d 552 (M.D.N.C. 2004), wheer the court noted that sectoi n 1924 only requires an affidavit “before any bill ofcosts is taxed.” Id. at 572 (quotingPiraino v. Int’l Orientation Res., No. 94C493, 1997 WL 222948, at *2 (N.D. Ill. Apr. 30, 1997)). Thecourt therefore granted the prevailing party leave to amend the bill of costs by supplying an fafidavit that complied with section 1924. Adopting the reasoning from those decisions, without deciding whether the declaration already submitted by defense counsel is insufficient, the Court grants the defendants leave to amend the bill of costs within seven days from the entry of this Opinion and Order by filing an affidavit that uses the precise language of 28 U.S.C. § 1924.
CONCLUSION For the reasons state d, the defendants’ motion for award of attorneys’ fees and costs is GRANTED IN PART and DENIED IN PART. Documents #232 and #238. The m otion for an award of attorneys’ fees and litigation expenses isdenied. The defendants are given leave to amend their motion for an award of costs by subm itting an affidavit t hat uses t he precise language of
16

28 U.S.C. § 1924 within seven days fromthe entry of this Opinion and Order4. If the defendants file such an affidavit within seven days from the entry of this Opinion and Order, the Court will enter an award of costs pursuant to Rule 54(d) of th e Federal Rules of Civil Procedure and 28 U.S.C. § 1920 in the amount of $150,585.00.
IT IS SO ORDERED this 6th day of February, 2012. J. LEON HOLMES UNITED STATES DISTRICT JUDGE
4 Appendices and attachments need not be resubmitted. The previously submitted appendices and attachments may be incorporated by reference.
17

 
 UNITED STATES DISTRICT COURT FOR THE
 EASTERN DISTRICT OF ARKANSAS
 WESTERN DIVISION


UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)


)


STATE OF ARKANSAS et al.;

)


)


Defendants.

)


)

__________________________________________)

CIVIL ACTION NO: 4:09-CV-00033-JLH

UNITED STATES’ MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65, the United States moves the

Court for a preliminary injunction based on the imminent and serious threat of

harm to the life, health, safety, and liberty of the individuals residing at the

Conway Human Development Center (“CHDC”). The State of Arkansas (“State”)

fails to serve residents in the most integrated setting appropriate to their needs in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213,

and exposes residents to death and injury as a result of unconstitutional medication

management and restraint practices.

As more fully set forth in the attached Memorandum of Points and

Authorities, there is a substantial likelihood that the United States will prevail on

the merits, irreparable harm is being inflicted upon residents of CHDC, the balance

of harms favors granting the injunction, and the public interest would be served by

granting the injunction.

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division Attorney for Plaintiff
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division Attorney for Plaintiff
SHANETTA Y. CUTLAR Chief Special Litigation Section Attorney for Plaintiff
BENJAMIN O. TAYLOE, JR. Special Counsel Special Litigation Section Attorney for Plaintiff
s/ Kerry Krentler Dean KERRY KRENTLER DEAN CHRISTOPHER N. CHENG ARETHEA A. COLES LAURA COON JACQUELINE K. CUNCANNAN VINCENT HERMAN NICHOLAS MAY Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 514-6255 kerry.k.dean@usdoj.gov Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I certify that on March 9, 2010, I electronically filed the United States' Motion for Preliminary Injunction with the Clerk of the Court using the CM/ECF system, which will send notification to the following:
Thomas York, Esq. York Legal Group 3511 North Front Street Harrisburg, PA 17110 717-236-9675 717-236-6919 (fax) tyork@yorklegalgroup.com
Donald B. Zaycosky York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 717-236-9675 dzaycosky@yorklegalgroup.com
Lori Freno-Engman Arkansas Attorney General's Office 323 Center Street Suite 200 Little Rock, AR 72201-2610 (501) 682-1314 lori.freno@arkansasag.gov
Respectfully submitted,
s/ Kerry Krentler Dean KERRY KRENTLER DEAN Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 514-6255 (202) 514-0212 (fax) kerry.k.dean@usdoj.gov

 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20035

The Honorable Mike Huckabee Governor of Arkansas State Capitol Little Rock, Arkansas 72201

APR 2 1 2004

Re: CRIPA Investigation of the Conway Human Development Center, Conway, Arkansas

Dear Governor Huckabee:

I am writing to report the findings of the Civil Rights Division's investigation of conditions at the Conway Human Development Center ("Conway"), in Conway, Arkansas. On November 8, 2002, we notified you of our intent to conduct an investigation of Conway pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. As we noted, CRIPA gives the Department of Justice authority to seek relief on behalf of public institution residents who have been subjected to a pattern or practice of egregious or flagrant conditions in violation of the Constitution or federal law.

At various points in February, April, and May of 2003, we conducted on-site inspections of Conway with expert consultants in psychiatry, psychology, general medical care, nursing, nutritional and physical management, protection from harm, community placement, and special education. Before, during, and after our site visits, we reviewed medical and other records relating to the
care and treatment of over 300 residents. We also reviewed facility policies and procedures, interviewed administrators and staff, and observed residents in their residences, activity areas, classrooms, and during meals. We conveyed our preliminary findings at exit interviews conducted at the end of the February and April facility visits, and articulated our preliminary findings by telephone shortly after our May visit.

As a threshold matter, we note that Conway is staffed predominately by dedicated individuals who are genuinely concerned for the well-being of the persons in their care. Further, we wish to express our appreciation for the assistance and cooperation

provided to us by Conway administrators and staff throughout the investigation.
Consistent with our statutory obligation under CRIPA, I now write to formally advise you of the findings of our investigation and the minimum remedial steps we deem necessary to address these deficiencies. As described more fully below, we conclude that certain conditions at Conway violate the federal constitutional and statutory rights of residents~ In particular, we find that residents of Conway suffer significant harm or risk of harm from shortcomings in the facilities' health care, habilitative treatment services, restraint practices, and protection from harm policies. We further find that the State fails to provide residents with required education services pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et ~· Finally, it appears that the State does not provide services to individuals with disabilities in the most integrated setting appropriate to individual residents' needs. See Olmstead v. L.C., 527 U.S. 581 (1999) i Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132 et
~i Section 504 of the Rehabilitation Act of 1973, 29 u.s.c:
§ 794i 28 C.F.R. § 35.130 (d).
I . BACKGROUND
Conway is a center for persons with developmental disabilities such as mental retardation, cerebral palsy, epilepsy, and autism. At the time of our 2003 visits, Conway housed nearly 550 residents aged 11 to 66. Residents live in approximately 30 housing units spread across the facility's campusi each unit houses between 14 to 38 residents. Some residents require substantial staffing supports to meet their daily needs, while others are much more independent. A number of residents have significant behavioral issues, and many of the residents are either non-ambulatory or have other health care needs. At the time of our tours, over 70% of the residents were identified by Conway as having seizure activity, and almost half of the residents were receiving anticonvulsant medications. Over 40% of residents had been diagnosed as having one or more psychiatric disorders and were receiving psychotropic medications.
2

II. FINDINGS
A. HEALTH CARE
The residents of Conway are entitled to adequate health care. See Youngberg v. Romeo, 457 U.S. 307, 316, 323 (1982) i Green v. Baron, 879 F.2d 305, 310 (8th Cir. 1989) . 1 To its credit, Conway generally provides adequate EKG monitoring, serum drug levels, and various laboratory testing (e.g., liver function tests, complete blood counts). Dental care is also adequate. Additionally, with the exception of neurology services, _residents who require a specialized level of medical care generally receive consultative services.
Notwith~tanding these isolated positive elements of care, however, our investigation revealed that the overall health care provided to Conway residents is grossly deficient and exposes individuals to substantial risk of harm. We found particularly acute problems with Conway's medical and neurological care, as well as its physical and nutritional management and therapy services. Nearly as troublesome were Conway's infection control and medication administration practices.
1. Medical Assessment and Treatment
Medical assessment and treatment services at Conway are terribly inadequate. Conway medical staff often fail to consider crucial medical variables, formulate diagnoses, and plan timely and appropriate interventions. This has resulted in serious delays and, in some cases, outright failures, in identifying, diagnosing, treating, and monitoring residents with serious and life-threatening medical problems.

1

In assessing whether the constitutional rights of

individuals with developmental disabilities in institutions

have been violated, the governing standard is the Due Process

Clause of the Fourteenth Amendment. Youngberg, 457 U.S. at

323. Accordingly, the proper inquiry focuses on whether

institutional conditions substantially depart from generally

accepted professional judgment, practices, or standards. Id.

at 323i see also Morgan v. Rabun, 128 F.3d 694, 697-98

(8th Cir. 1997) i Heidemann v. Rother, 84 F.3d 1021, 1029

(8th Cir. 1996).

3

The days leading up to the death of Conway resident Nancy Green2 illustrate the serious deficiencies in basic medical care at Conway. On April 7, 2003, nursing staff reported evidence of "profuse bleeding" into Ms. Green's colostomy bag. On April 8, 2003, the attending physician recommended "seeking surgery for cauterization of stoma site." 3 Yet there was no documentation that the physician examined or attempted to examine Ms. Green at that time. Although she experienced significant amounts of bleeding on three more documented occasions, Ms. Green was not seen by a surgeon until April 17, at which time the surgeon finally cauterized the colostomy area and stated, "if bleeding persists, will need to admit and work up in hospital."
On no less than eight subsequent occasions during the next three months, Conway nursing staff documented significant bleeding, sometimes in amounts that were large enough to fill Ms. Green's colostomy bag, spill onto her legs, and soak her clothing. Records indicate that on only one occasion did the attending physician actually examine the stoma site. There is no evidence that the physician ever assessed the various possible causes of Ms. Green's bleeding or developed a plan of care to evaluate and treat these causes (other than referrals to surgery for cauterization and to a local emergency room) . This is especially disturbing because not only did Ms. Green have a documented history of conditions that can be likely causes of significant bleeding, but the surgeon had recommended an inpatient evaluation if bleeding persisted. On July 30, 2003, after two documented episodes of particularly heavy bleeding the day before, the physician finally sent Ms. Green to Conway Regional Medical Center where, on August 9, 2003, she died.
Conway did not provide us an autopsy report or hospital records, although we requested these materials. Without such records, it is not possible to determine the exact cause of Ms. Green's death. However, Conway's failure to assess adequately the possible causes of Ms. Green's persistent bleeding and to develop a plan of medical care as well as its apparent disregard of the treating surgeon's instructions, represents a gross deficiency in medical care.

2

To protect residents' privacy, we identify residents

with pseudonyms. We will separately transmit a schedule

cross-referencing the pseudonyms with the residents' names.

Stoma is a surgical opening.

4

The case of Ms. Green is hardly unique. We found numerous other instances where Conway's physicians failed to conduct basic assessment and treatment of residents, and overlooked or ignored significant symptoms. For example, during Donna Moran's annual physical examination in April 2002, the physician detected a "3 x 3 em. mass, right breast," and recommended further assessment of the mass. But medical records reflect, and the attending physician confirmed during our May 2003 tour that, more than one year after detection of the breast mass, absolutely no follow-up was provided to Ms. Moran. This is especially disturbing in light of the fact that Ms. Moran's medical summary sheet indicates that she has a "history of hysterectomy" without any further information on the reason for the hysterectomy. If the undocumented reason for the hysterectomy was cancer, the breast mass could be closely related and potentially life-threatening.
Edward Spears presents another troubling case. Mr. Spears has been diagnosed with a seizure disorder. Medical records reflect that beginning in November 2002, Mr. Spears' seizures worsened in frequency, severity, and type of seizure activity, and that he also began to fall frequently, something not previously noted to be a problem. Yet neither the attending physician nor the neurologist adequately assessed Mr. Spears to determine the cause of the increased seizure activity and the falls. The omission is glaring because a blood test conducted in February 2003 indicated serum potassium in the toxic range. Elevated levels of serum potassium are known to have adverse effects on neurological functioning, and may have been the cause of Mr. Spears' increased seizure activity and falls. Although the attending physician initialed the February 2003 blood test results, there is no record of follow-up of any kind.
One factor exacerbating Conway's deficient medical care is its grossly inadequate documentation practices. Generally accepted professional standards require that medical records be organized in a manner that allows relevant information to be identified and utilized in medical treatment decisions. Conway's records are incomplete, cursory, and arbitrary. Progress notes by both nurses and physicians do not accurately reflect whether or not a resident has been fully assessed or a treatment plan has been ordered. Medical summaries and problem lists fail to include vital information about treatments and, in many cases, contain outdated information regarding current diagnoses, medications, and specialists involved in the residents' care.
5

Nursing care plans likewise are inadequate. They are not standardized, are not updated appropriately, are minimal in content, and are not sufficiently specific. Patient goals are poorly documented and not reviewed consistently among the different treatment teams. Often, goals are not implemented, and no rationale is provided to explain the lack of implementation.
Another factor that contributes to the inadequate medical care is Conway's lack of a system for monitoring the quality of physician services. Generally accepted professional standards dictate that health care facilities collect data on patterns of physician practices and make inquiries regarding problematic trends. Additionally, there should be a process through which information about physician practices and trends can be used for corrective action and performance improvement. Conway's lack of an adequate monitoring system for physician services places residents at risk of preventable and potentially life-threatening harm. And Conway's failure to conduct meaningful mortality reviews, discussed below, heightens this risk.
2. Preventive Care
Conway's preventive care is deficient in a number of important respects. First, Conway fails to provide consistent screening for residents who are at risk for developing particular medical problems, including: (1) screening for thyroid and cervical spine problems in individuals with Down's syndrome; (2) bone density screening for those at risk of developing osteoporosis (e.g., those receiving long-term treatment with phenytoin4 ); and, (3) screening for bowel dysfunction.
Resident Michael Willis provides a case in point. Mr. Willis, who receives chronic treatment with phenytoin, has never had his bone density screened appropriately. Over the course of several years, Mr. Willis has suffered several fractures, including fractures of his right humerus, right ankle, right fourth finger, left clavicle, and right first metatarsal. The failure to screen for bone density is a substantial departure from generally accepted practices and may have denied Mr. Willis preventive treatment for his increased risk of fractures.
Conway also fails to conduct adequate physical examinations. Physical examinations, which are supposed to be conducted

4

Phenytoin is an anticonvulsant medication.

6

annually, are often not timely. Morever, when these exams do occur, physicians regularly "defer" examination of residents' genitalia, testes, external vagina and rectum. There is no documentation indicating that these examinations are later performed. Generally accepted professional standards of care require that such probes should be part of every annual physical examination. The consistent deferment of this portion of the examination places residents at risk that illnesses and other harmful conditions will go undetected and untreated. Of great concern is the possibility that the failure to conduct such examinations annually will allow sexual abuse to go undetected.
Finally, according to generally accepted professional standards, all staff who work directly with residents should be certified and re-certified in cardiopulmonary resuscitation ("CPR") and first aid. Although all Conway staff are trained and certified in CPR upon initial hire, only medical staff are required to become re-certified in CPR. The direct care staff, who are often the only persons available to assist residents on the units in case of an emergency, are not required to maintain these certifications.
3. Neurological Care
Conway fails to provide adequate care and monitoring for residents with seizure disorders. At the time of our tour, over 70% of the residents had a history of seizure activity and almost half of the residents were taking one or more anticonvulsant medications for a seizure disorder. Generally accepted professional standards dictate that all reasonable efforts should be taken to: (1) identify the cause of a resident's seizures, (2) use anticonvulsant medications that control seizures with minimal toxicity, and (3) use alternative therapies for residents with seizures that are resistant to medications.
At Conway, however, some residents with active seizure disorders have not received neurology services of any kind in several years. Further, Conway has no clear criteria for referrals of individuals with refractory seizures --i.e., experiencing ten or more seizures per year -- to epileptology. At the time of our review, the majority of Conway residents with refractory seizures had not been evaluated by epileptology.
Conway also fails to monitor adequately the use of anticonvulsant medications. Anticonvulsant medications are not uniformly helpful for various seizure types, and certain
7

medications that may reduce one type of seizure may exacerbate others. At Conway/ the use of anticonvulsant medication is not based on a reliable diagnostic evaluation to determine the specific type of seizure an individual exhibits. In the vast majority of records we reviewed/ no diagnosis of seizure type was listed either in the medical summaries or in the neurology consultant/s notes. This is true even in the records of individuals with refractory seizure types. Indeed/ at the time of our tour/ several residents had experienced well over ten seizures within 12 months. Yet none of these residents/ records contains a characterization of seizure type/ nor do the records reflect any effort to classify the seizures. For that matter, Conwayts selection of anticonvulsant medications suggests no effort to match the seizure type with the medication most likely to address the problem. This raises the possibility that poor treatment selection may be a factor in the worsening of the seizure disorder.
Conway similarly neglects to provide any monitoring of cognitive/ motor 1 or behavioral toxicity associated with the use of anticonvulsant treatments. Anticonvulsant medications can have a wide range of adverse and potentially life-threatening effects. Individuals with developmental disabilities are particularly vulnerable to the adverse affects of anticonvulsant medications/ especially the older anticonvulsants. Although some Conway residents with seizure disorders have been transitioned from treatment with older anticonvulsant medications to newer agents/ the use of older anticonvulsants is still prevalent, without appropriate diagnostic evaluation and careful analysis of risks and benefits.
Generally accepted professional standards of care require that individuals who have been seizure-free for two or more years be re-evaluated to determine whether anticonvulsant treatment is still necessary. However/ numerous Conway residents receiving anticonvulsant medications at the time of our tour had no documented seizure activity in several years. For example/ Kevin Rogers has received continuous treatment with phenytoin since his last documented seizure in 1991. His most recent neurological assessment was in 1992. Pat Glass and Lisa Parks have been treated continuously with phenytoin since their last documented seizures in 1996. There is no evidence that either resident has received a neurological assessment of the need for this continued treatment or any evaluation of the risks associated with use of this anticonvulsant medication/ which include significant
8

impairment in motor performance, decline in cognition, and increased risk for pathological fractures. 5
4. Nutritional and Physical Management Services
Conway's physical and nutritional management services pose serious risks to residents. Specifically, Conway fails to: (1) identify, assess, and monitor individuals vulnerable to the type of health concerns common in individuals with developmental disabilities; (2) provide adequate mealtime supports; (3) conduct safe and proper transfers of individuals who need assistance; and (4) provide adequate seating systems and alternate positioning options. As a result, Conway residents are subjected to a range of serious and, in some cases, potentially fatal conditions.
a. Identification, Assessment & Monitoring of High Risk Residents
Individuals with developmental disabilities often have significant health and medical concerns, including pneumonia and/or aspiration pneumonia, choking, dysphasia, 6 lung disease, seizure disorders, and gastroesophageal reflux, to name just a few. When these "health risk indicators" are present (especially in combination) , residents require specialized physical and nutritional supports ("PNS") in order to avoid serious risk of harm. Safe and adequate nutrition, whether taken orally or through tube-feeding, is critical.
Generally accepted professional standards require that a facility like Conway have a PNS team, committee, or the equivalent whose functions include: (1) identifying and tracking individuals with health risk indicators; (2) providing comprehensive assessments of an individual's PNS needs; and (3) monitoring the effectiveness of PNS services. Conway does not have a PNS team or any other system for adequately identifying, assessing, and monitoring individuals with, or at risk of, health concerns common in individuals with developmental disabilities.

5

A pathological fracture is a spontaneous fracture

occurring as a result of disease of a bone and not due to

trauma.

6

Dysphasia is a condition that causes difficulty in

swallowing.

9

Conway does have what it calls "specialized eating committees," including a central Specialized Eating Committee ("Central SEC") and each treatment team,s Specialized Eating Commit tee ("Team SEC,,) . However, these commit tees do not serve the critical functions of identifying, assessing, and monitoring individuals with, or at risk of, PNS-related health concerns. According to Conway,s written policies and procedures, the Central SEC is supposed to provide quality control with respect to specialized eating guidelines and general structure and oversight to the Team SECs. In practice, the Central SEC performs administrative tasks such as following up on lost equipment, conducting inventories of adaptive mealtime equipment, and gathering catalogs to order equipment. We found no evidence that the Central SEC had addressed significant PNS issues for anyone living at Conway during the eight-month period for which meeting minutes were provided. In fact, at the time of our tour in February 2003, the Central SEC had not even met since October 2002.
Likewise, the Team SECs do not provide the comprehensive supports and services that a PNS team typically provides. According to Conway,s written policies and procedures, the primary purpose of each Team SEC is to enhance individuals, eating skills. In practice, Team SECs conduct limited mealtime monitoring on a sporadic, inconsistent basis. Furthermore, this monitoring generally is limited to determining whether the proper equipment and diet texture is provided to the individual. Staff 1 s monitoring does not include a systematic review of the effectiveness of the specialized eating procedures or staff,s implementation of the mealtime plan.
There are a significant number of residents at Conway who, based on their histories of health risk indicators, should be, but have not been, assessed and monitored by a PNS team. For example, Conway,s records reveal that several individuals experienced repeated incidents of decubitus ulcers7 in the year preceding our tour, and numerous others were identified as having "skin integrity concerns" in staff meeting minutes. Others have documented diagnoses of dysphasia or pneumonia and many have experienced significant weight loss. Numerous residents have been

7

Decubitus ulcers are sores resulting from the

prolonged pressure of lying in a bed for a long period of

time. They are also referred to as pressure sores or bed

sores.

10

taken to the emergency room and/or hospitalized for PNS-related diagnoses such as dehydration, respiratory distress, bowel obstruction, and aspiration. Sadly, many individuals who have died since January 2002 exhibited health risk indicators and may have benefitted from PNS-related services that they never received.
Even in cases where Conway makes efforts to identify specific physical and nutritional support needs, it fails to implement consistently a plan to address these needs. For example, Charlotte Reese had a swallow study in January 2002 due to increased coughing during and after meals. The radiologist's report concluded that dysphasia was present and recommended smaller bites and "chin tuck maneuvers." There is no evidence that the SEC or the speech-language pathologist reviewed the swallow study, nor did Ms. Reese have a set of specialized eating procedures in place to guide staff on proper food presentation techniques. We observed Ms. Reese during a meal when staff presented her with large bites of food without sufficient time for her to swallow and clear. At times, staff presented up to five bites without permitting her to swallow and clear.
In another example, Tim Jackson had a swallow study in February 2002, in which the radiologist concluded that he should not receive thin liquids. However, Mr. Jackson's specialized eating procedures were dated January 2002 and, at the time of our review more than a year later, had not been updated to reflect the findings and recommendations of the swallow study.
Conway also fails to provide adequate PNS services to individuals receiving tube-fed nutrition. Tube-fed individuals are at risk of complications such as those related to surgery, aspiration, and respiratory problems. Therefore, generally accepted standards of care require that a PNS team: (1) conduct a comprehensive assessment of PNS needs prior to tube placement, and (2) develop a PNS plan to address the individual's needs after tube placement. This plan should include consideration of a return to oral intake.
None of the 70 individuals identified by Conway as receiving some or all of their nutrition via tube at the time of our review had received a comprehensive team assessment prior to tube placement, nor did any of them have a PNS plan. In fact, the SECs had not completed any assessments, screenings, reviews, or monitoring of any of these 70 residents.
11

b. Mealtime Supports
Conway fails to provide adequate mealtime supports to its residents. We observed numerous individuals who were eating and drinking, either on their own or with staff assistance, at too fast a pace, and many who were presented or permitted to take bites or sips that were too large. Staff frequently failed to follow the residents' specialized eating procedures or other mealtime plans. For example, some individuals did not receive the correct diet texture and/or liquid consistency. Others were supposed to receive liquids throughout the meal but received none. All of these practices place residents at risk of aspiration and choking.
We also observed numerous individuals eating, drinking, or receiving enteral nutrition while in poor postural alignment, placing these individuals at risk of gastroesophageal reflux, 8 in addition to aspiration and choking. In many instances, direct care staff not only failed to correct the resident's poor postural alignment, but actually contributed to the risk of harm by using improper mealtime assistance techniques (e.g., standing above the resident's eye level range, causing the resident to hyperextend his or her neck) .
Mealtimes in some of the housing units are exceptionally crowded and chaotic, with insufficient staffing to provide adequate supervision and assistance during meals. See 42 C.P.R. § 483.430 (d) (1) ("The facility must provide sufficient direct care

8

Gastroesophageal reflux is the term used to describe

a backflow of acid from the stomach into the swallowing tube

or esophagus. When the frequency of acid reflux is much

greater than normal, or complications develop as a result of

acid reflux, the condition is known as gastroesophageal reflux

disease, or GERD. Chronic irritation of the esophagus by

stomach contents may cause scarring and narrowing of the

esophagus, making swallowing difficult. GERD may also

irritate the muscles in the esophagus, causing discoordinated

activity during swallowing. Severe injury to the esophagus

may lead to bleeding or ulcer formation. Patients who

experience regurgitation could aspirate stomach contents into

their lungs resulting in pneumonia. Chronic irritation of the

esophagus may also lead to the growth of abnormal lining

cells, a condition known as Barrett's esophagus.

12

staff to manage and supervise clients in accordance with their individual program plansn). Our observations of breakfast in one unit are illustrative of many of these harmful practices. When we arrived, there were two staff in the day room with 16 residents, while two other staff were in the kitchen preparing breakfast. The meal began shortly after 7:00 a.m. Many residents did not have a beverage. A number of residents had difficulty cutting their food and, when they received no assistance from staff, began eating large pieces of food with their hands, often stuffing large pieces of food in their mouths. One of the men we observed swallowing whole pieces of French toast has a diet order that calls for diced, half-inch pieces of food, and had a choking incident in April 2002. After residents' repeated requests for a beverage, a staff member finally brought a pitcher of juice to the residents at 7:40 a.m. Three of the men, however, had finished their meal by 7:25 a.m. and thus had no beverage with their meal. One resident lowered his pants in the dining room and was removed. Another resident was observed "feedingn other men from his plate and pouring liquid from his cup into another resident's cup before and after he drank from the cup himself. A third resident dropped his spoon and was unable to retrieve it himself. He quietly asked for assistance, but no staff attended to him. A fourth resident gulped liquids rapidly and coughed repeatedly without staff intervention. Another resident also gulped his beverage rapidly at the end of his meal. At approximately 8:00a.m. (and after our Conway staff escort spoke to a staff member), five additional staff entered the dining area.
The numerous unsafe mealtime practices described above reflect the inadequate training and supervision that Conway provides to its direct care staff, as well as deficiencies in the knowledge and skills of the professional staff who should be supervising and correcting the direct care staff. Contrary to generally accepted professional standards, Conway's direct care staff do not receive competency-based training regarding mealtime assistance strategies specifically related to presentation of food and fluids, nor do they receive person-specific training regarding the implementation of residents' nutritional support plans. Moreover, despite the many shortcomings we observed, the professional staff do not identify these practices as deficient through their mealtime monitoring activities or otherwise.
c. Transfers
A significant portion of Conway residents have limited mobility and, therefore, are dependent on staff to transfer them
13

from one position or location to another. Generally accepted professional standards of care require that staff be adequately trained in and utilize safe and appropriate physical support and handling techniques in the course of transfers. Properly setting up the environment prior to executing a transfer is a critical component in this process. Controlled, smooth and segmented movements with proper body mechanics, and adequate support of the individual at proximal points of his or her body are integral aspects of safe and efficient transfers. When transfers are conducted improperly, residents are at significant risk of harm, including nerve damage, fractures, and various injuries resulting from falls.
We observed numerous transfers in which staff demonstrated unsafe techniques such as moving too quickly, dropping the resident onto a chair or bed, improperly securing wheelchairs or beds prior to transfer, failing to properly align the resident after the transfer, neglecting to communicate to the resident and prepare equipment prior to the transfer, and using improper body mechanics. These improper techniques place residents (and staff) at significant risk of injuries.
The numerous unsafe transfer techniques we observed reflect the inadequate training and monitoring that direct care staff receive. Staff training on transfer techniques should stress practice and performance competency in the areas of proper body mechanics and proper alignment and support of the resident before, during, and after a transfer. See 42 C.F.R. § 483.430(c) (2) ("For employees who work with clients, training must focus on skills and competencies directed toward clients' developmental, behavioral, and health needs"). Conway's training is not competency-based. Indeed, instructions and guidelines distributed during Conway's initial phase of training fail to include important information, such as how to set up a safe transfer environment and the proper use of a mechanical lift.
d. Seating Systems and Alternate Positioning
Conway's seating systems and alternate positioning devices substantially depart from generally accepted professional standards. It is well established among professionals in the health care field that individuals must be provided with safe and appropriate seating systems and alternate positioning devices that allow for proper alignment and support. Seating systems and alternate positioning devices should be individually tailored to the specific needs of each resident. Residents who are not
14

properly aligned and supported in their seating systems and/or alternate positioning devices are at risk of aspiration, gastroesophageal reflux, contractures, 9 musculoskeletal deformities, debucitus ulcers, skin breakdown, and other harmful conditions.
We observed numerous residents with poor alignment and support in wheelchairs, beds, and recliners. Many residents with inadequate support and alignment were receiving tube-fed nutrition at the time, increasing the resident's risk of aspiration and gastroesophageal reflux, and reducing the resident's ability to breathe and digest safely and effectively.
Conway's alternative positioning options are limited to beds, recliners, beanbags, beds with padded sides, and waterbeds. These devices may not address the unique needs of each resident and thus may not provide needed pressure relief. In fact, team meeting minutes reflect that several residents experienced "skin integrity concerns" related to their seating systems and/or alternate positioning.
Comprehensive assessment of residents' seating system and alternate positioning needs is a generally accepted professional practice, and typically includes a "mat assessment" to identify the individual's postural patterns, skeletal deformities, and range of motion limitations for seating and other positions. Without comprehensive assessments, individuals are at risk of receiving inadequate support and alignment which, as discussed above, increases their risk of physical harm.
Conway's PT/Orthotic shop operates a "seating clinic" and, to its credit, capably completes seating system fabrications, modifications, and repairs on-site and in a timely manner. However, Conway's seating clinic does not conduct adequate assessments of residents' needs prior to fabrication or modification of seating systems.
Morever, only a fraction of the individuals with seating systems are evaluated in the seating clinic. We received conflicting information regarding how many individuals are

9

A contracture is a permanent tightening of muscle,

tendons, ligaments, or skin that prevents normal movement of

the associated body part. It can cause permanent deformity of

the affected body part.

15

actually seen in the clinic on an annual basis, ranging from 44 to 150 residents. Whatever the correct figure is, the number of individuals seen in the clinic is still substantially less than the 244 to 275 residents who use a wheelchair as their primary means of mobility. In fact, we observed residents in seating systems with poor alignment and support who, at the time of our review, had not been evaluated by the clinic in over a year. Moreover, even when evaluated by the clinic, residents often are not provided safe and appropriate seating systems. Several residents, for instance, were evaluated in the clinic in the year prior to our tour, but none_ were in seating systems that provided adequate alignment and support at the time of our review.
Ellie Ryan illustrates the risk of significant harm presented by not providing a comprehensive seating assessment. Between February and October 2002, Conway staff submitted six separate work orders to resolve problems with Ms. Ryan's foot support in her wheelchair. But there was no evidence that Conway conducted a comprehensive assessment of Ms. Ryan's needs. The modifications made in response to each of the six work orders did not resolve Ms. Ryan's foot support issues and, consequently, she suffered multiple injuries over the six-month period, including foot fractures and skin breakdown. If Conway had provided Ms. Ryan with a timely and comprehensive seating assessment in February 2002, these injuries may have been prevented.
Finally, Conway's system for monitoring the condition and effectiveness of seating systems is inadequate. Based on the number of individuals we observed with inadequate seating systems, as discussed above, it is apparent that the therapists and aides charged with identifying alignment and support issues lack the knowledge and skills necessary to recognize and correct these deficiencies.
5. Therapy Services
Conway fails to provide its residents with adequate and appropriate occupational therapy ("OT"), physical therapy ("PT"), and communication services. As a result, residents face an increased risk of contractures and deformity, and loss of independence and functional skills. Lack of adequate OT and PT supports also exposes residents to an increased risk of respiratory, gastrointestinal, and skin integrity complications. If communication skills deteriorate or are not developed, residents are more likely to be unable to convey basic needs and concerns. Lack of communication skills will also make it more
16

difficult for staff to recognize and diagnose health issues such as pain.
Conway fails to provide residents with adequate OT and PT assessments and services. Assessments fail to establish clear baselines and goals for therapy services. In fact, of the 53 individual program plans we reviewed for therapy services, not one included learning objectives for people receiving direct OT or PT. Rather, documentation of residents' progress in therapy typically consists of superficial, subjective statements such as the resident "had a good year," or was "performing well," and contains no measurement or analysis of objective data, nor even an expectation that residents will acquire new skills. With regard to OT and PT assessments and services, it remains unclear whether Conway's OT and PT staff are unable to recognize potentials and needs for residents or whether they simply do not have time, due to low staffing levels, to assess and implement supports appropriately for residents to meet their individualized needs.
Communication evaluations are more comprehensive than OT and PT evaluations, and more often include measurable learning objectives. However, Conway's communication therapists fail to provide adequate augmentative and alternative communication ("AAC") evaluations and services. AAC devices (e.g., communication boards, electronic devices, etc.) are used by individuals who have the capacity to communicate with others, but who have impairments that interfere with their ability to do so verbally. AAC devices enable individuals who otherwise would be unable to do so to explain their medical (e.g., pain, illness symptoms, etc.) or other problems (e.g., abuse, neglect, etc.). Additionally, AAC devices can be critical to community placement and independent living opportunities. Contrary to generally accepted standards, Conway requires that a resident demonstrate certain skills, such as vision, ability to identify objects or pictures, and imitation of fine motor movements or gestures, as prerequisites to being evaluated to determine whether he or she would benefit from an AAC device. Additionally, and again in contravention of generally accepted professional standards, numerous residents who had been identified to receive training to use an AAC device do not have access to such a device to use throughout their day, without which these individuals cannot learn to communicate in a meaningful and functional context.
17

6. Infection Control
Conway staff follow infection control policies that are outdated, unsafe, and ineffective to prevent the spread of infectious and contagious diseases, placing Conway residents and staff at risk of harm. For example, Conway's policy regarding blood-borne pathogens is ten years old, and fails to include recently identified precautions regarding the transmission of blood-borne pathogens such as hepatitis and HIV/AIDS. Additionally, Conway permits up to a two-week grace period from the time of admission before administering the PPD to identify residents who might be positive for tuberculosis. Conway's practice of permitting a time lag of this length has the potential to allow a case of active tuberculosis to go undetected.
7. Medication Administration
Generally accepted professional standards of care require that the administration of medications be documented in a Medication Administration Record ("MAR") that reflects the dosage and the actual time of administration. Conway's MARs deviate from these standards of care. Specifically, the MARs document the time when the medication is ordered to be administered, not the time that the medication is actually administered. This permits the actual time of medication administration to go undocumented and for personnel to elude accountability for errors.
B. HABILITATIVE TREATMENT AND RESTRAINTS
The residents at Conway are entitled to reasonable safety, freedom from unreasonable restraint, and habilitative treatment adequate to ensure safety and facilitate the ability to function free from restraints. See Youngberg, 457 U.S. at 324. Conway's habilitative treatment services and restraint practices, however, are grossly deficient and expose residents to substantial risk of harm and unreasonable restraint. Conway's activity programming, behavior programs, psychiatric services, and restraint practices and procedures are all critically inadequate.
1. Activity Programming
An essential component of habilitative treatment for persons with developmental disabilities is the regular provision of activities designed to help them develop new skills and practice skills already learned. See 42 C.F.R. § 483.420(6) (facilities participating in Medicaid must "ensure that clients are provided
18

active treatment to reduce dependency on drugs and physical restraints"). However, in the vast majority of units we observed during our tour of Conway, the residents were not engaged in any activities whatsoever. For example, in 10 Birch, 11 Birch, 14 Cypress, 15 Cypress, 19 Maple, 21 Birch, and 25 Cedar, we consistently observed few or no activities for residents to engage in, and extremely low staff-to-resident interactions. When residents are not provided with adequate treatment programming, not only are they less likely to learn adaptive behaviors, but they also are more likely to seek stimulation through maladaptive behaviors such as self-stimulation, withdrawal, self-injury, or physical aggression. These maladaptive behaviors, in turn, increase staff's utilization of restrictive procedures such as physical restraints and psychopharmacological interventions.
Even if meaningful activities were offered to Conway residents, direct care staff in the majority of the units we observed do not possess the skills necessary to provide adequate habilitative treatment to residents. A significant number of staff failed to demonstrate competency in the most basic skills, such as effectively prompting residents and reinforcing and shaping appropriate behavior. For example, we observed numerous instances where staff failed to intervene effectively when a resident exhibited self-injurious behavior ("SIB").
The lack of adequate activity programming at Conway is due, in part, to the inadequacy of the training and supervision provided to direct care staff. Generally accepted professional standards require structured, ongoing performance-based training for the direct care staff who implement the treatment programming, and systematic monitoring of the direct care staff to ensure proper and consistent implementation. 42 C.F.R. § 483.430(e) ("The facility must provide each employee with initial and continuing training that enables the employee to perform his or her duties effectively, efficiently, and competently"). Based on our observations, Conway is not providing staff with this kind of training or monitoring. This places residents at risk for poor program implementation and, in turn, inadequate treatment and risk of harm. At the time of our review, Conway's director of staff training/development position was vacant, further exacerbating the inadequacy of Conway's staff training program.
Likewise, although it is commendable that members of Conway's psychological staff participate in group-monitoring processes, Conway does not provide its psychology staff with the training and supervision necessary for them to provide adequate psychological
19

and behavioral services. In particular, Conway needs more centralized supervision and training of psychological examiners with respect to reliable and valid data collection practices, activity design, prompting methods, rate and quality of reinforcement, shaping of behavior, and the identification of alternative behaviors. At the time of our review, the position of Chief of Psychology was vacant and an off-site psychologist was covering the position. The lack of a permanent, on-site Chief of Psychology contributes to the inadequacies of the services provided by the department.
2. Behavior Programs
Conway's behavior programs are ineffective and substantially depart from generally accepted professional standards. Specifically, Conway's behavior programs: (1) are based on inadequate functional assessmentsi (2) are not implemented as writteni and (3) are not monitored and evaluated adequately. These deficiencies increase the likelihood that residents will learn or continue to engage in maladaptive behaviors as well as be subjected to unnecessarily restrictive interventions and treatments.
a. Functional Assessments
In order to develop an effective behavior program, generally accepted professional practice requires that psychology staff identify the underlying function of the resident's maladaptive behavior through an individualized, formal functional assessment. The functional assessments developed by Conway's psychology staff are seriously deficient. Without a thorough assessment of the function of the resident's maladaptive behavior, including clearly identified alternative behaviors to supplant the function of the maladaptive behavior, behavior programs will not be successful 1n modifying the maladaptive behavior.
b. Implementation
Improper implementation of a behavior program can lead to the inadvertent reinforcement of maladaptive behaviors, as well as the excessive use of restrictive treatments. See 42 C.F.R. § 483.430 (e) ("Staff must be able to demonstrate the skills and techniques necessary to implement the individual program plans for each client for whom they are responsible"). Throughout Conway, we observed numerous incidents of inadequate implementation of behavioral support programs.
20

Our observations of staff implementation of Barbara Charles' behavior program illustrate the risk of harm inherent in improper program implementation. Ms. Charles' behavioral support program identifies various forms of SIB, including face slapping, hand biting, and scratching. Pursuant to Ms. Charles' program, direct care staff are to provide activities for her at least every 15 minutes. When Ms. Charles engages in SIB, her program provides that staff are to give her a verbal prompt and graduated guidance to interrupt the SIB. If this is unsuccessful in interrupting the SIB, Ms. Charles' program provides for use of mechanical restraints to prevent further SIB. During our observation, Ms. Charles engaged in SIB at least 13 times in the presence of supervisory staff without intervention. There were no activities occurring at the time, and no staff attended to her. As staff continued to ignore her, Ms. Charles' rate and intensity of SIB increased. Only when Ms. Charles became extremely agitated did staff finally interact with her. By intervening only at the peak of her episode of SIB, staff are inadvertently reinforcing Ms. Charles' maladaptive behavior as a means of communication. Furthermore, the more agitated she is, the more likely it is that she will not be responsive to redirection which, in turn, increases the likelihood that staff will apply mechanical restraints. In this way, staff's failure to implement Ms. Charles' behavior program may lead to unnecessarily restrictive interventions. See 42 C.F.R. § 483.430 (e) (3) ("Staff must be able to demonstrate the skills necessary to administer interventions to manage the inappropriate behavior of clients").
c. Monitoring and Evaluation
Generally accepted professional standards of care require that facilities collect and record accurate, reliable data regarding residents on behavior programs. This data should be used to evaluate a resident's progress on behavior-related goals and to make decisions regarding future treatment. Otherwise, residents are in danger of being subjected to ineffective, inadequate, and/or unnecessarily restrictive treatment; avoidable injuries related to untreated behaviors and the use of unnecessary restrictive interventions; and potentially dangerous and unnecessary side effects of medications.
Methods of data collection used at Conway do not provide reliable, accurate data. Conway's primary instrument for data collection, the Behavior Incident Report ("BIR"), is not sufficient to provide useful data. For example, in reviewing a BIR, one cannot determine whether the behavioral incident involved
21

five acts of SIB or 50 acts of SIB. Cf. 42 C.F.R. § 483.440(e) (1) ("Data relative to accomplishment of the criteria specified in client individual program plan objectives must be documented in measurable terms"). Consequently, the information collected on the BIRs do not prov~de the degree of accuracy necessary for meaningful program review and analysis.
Other methods of data collection used at Conway are not recorded on a consistent basis and, therefore, do not provide accurate data. For example, on one unit (Poplar 32), data collection is conducted through the use of daily notations on a chalkboard regarding an individual's behavior. The information collected on the chalkboard is supposed to be transferred to a monthly tally sheet at the end of each day. When we observed the chalkboard, however, the previous day's data had not been erased. As a result, no data from the current day had been added to the chalkboard at the time of our observation. On-site review of the monthly tally sheet revealed that data was not available for a period of eight days (April 1-8, 2003). Basing decisions regarding a resident's treatment on such invalid data is not consistent with professional standards and places residents at risk of improper treatment and harm.
3. Psychiatric Services
Psychiatric services at Conway are a source of great concern to us. Specifically, Conway fails to: (1) provide adequate psychiatric assessment and diagnostic services, and (2) manage psychotropic medications properly.
a. Psychiatric Assessments and Diagnoses
Generally accepted professional standards of care require that initial psychiatric diagnoses be based on complete psychiatric assessments in which relevant historical, environmental, biological, social, psychosocial, medical, and neurological factors and influences are evaluated. Once an initial diagnosis is made, ongoing assessments should be conducted to ensure that timely re-evaluation of the resident's condition is made and treatment adjusted accordingly.
Conway's psychiatric assessments and diagnoses are seriously deficient. We requested copies of psychiatric assessments for over 70 residents; none of the records we received contained an adequate psychiatric assessment. Rather, residents are assigned diagnoses without any documentation of signs or symptoms to
22

justify the diagnoses. Nor is any consideration given to the psychosocial context of symptoms or possible behavioral treatment. Moreover, in many cases, the medication regimen prescribed for an individual is not appropriate for the diagnosis assigned.
Numerous individuals at Conway have tentative and unspecific diagnoses, listed as "not otherwise specified" ("NOS"), with no evidence of further assessments or attempts to finalize the diagnoses. In fact, with rare exceptions, once a resident is assigned an initial diagnosis, this diagnosis is continued without any significant changes, ignoring the dynamic nature of mental illness and the likelihood that these diagnoses were not valid when first established.
We found a multitude of examples of the assessment and diagnostic problems identified above. For example, John Black has a diagnosis of "psychiatric disorder, NOS." This is not a valid diagnosis and provides no legitimate basis for treatment. Mr. Black's record does not contain a complete psychiatric assessment, and psychiatric consultation notations list nonspecific behavior such as "destruction," "aggression," and "lability," without any evidence that attempts were made to obtain information regarding behavioral or contextual factors that might assist in diagnosing Mr. Black. Moreover, Mr. Black also has a diagnosis of obsessive-compulsive disorder ("OCD"). The only support for this diagnosis in Mr. Black's record consists of a brief notation stating "compulsive-sounding behavior," such as "tearing of mattress, clothing." This diagnosis has been continued for Mr. Black despite a failed medication trial that was intended to treat his "OCD."
Numerous other residents at Conway have been assigned diagnoses, including dementia of Alzheimer's type, tic disorder, and autism, without justification. Barry Goldman, for example, has a diagnosis of "dementia of Alzheimer's type." A diagnosis of Alzheimer's in an individual with mental retardation such as Mr. Goldman requires (i) the establishment of a baseline level of cognitive functioning, and (ii) the presence of multiple cognitive deficits, including memory impairment and at least one other specific cognitive disturbance in such areas as language use, ability to carry out motor acts, or identifying objects. But Mr. Goldman's diagnosis appears to be based on little more than vague, anecdotal staff reports of forgetfulness and episodes of confusion increasing to "2-3 per month," with no assessment of Mr. Goldman's baseline cognitive level, no collection of historical data, and no effort to perform a mental status
23

examination of Mr. Goldman's cognitive, language, and other functions. In fact, other than one statement in the psychiatric notes that Mr. Goldman was in a "good mood today," there is no indication he has ever been examined by the psychiatrist at all. Moreover, the report that Mr. Goldman's confusion had increased to 2-3 incidents per month suggests an episodic course that is inconsistent with Alzheimer's type dementia, but not inconsistent with Mr. Goldman's other diagnosis of seizure disorder. There is no evidence that Mr. Goldman was examined by a neurologist to determine whether his confusion is related to his seizure disorder, nor that a diagnosis of "delirium," a serious medical condition that is marked by an episodic fluctuating course of deficits, was considered. Instead, Mr. Goldman was given the "definitive" diagnosis of dementia of Alzheimer's type, a serious and untreatable condition, preventing the evaluation and treatment of his actual condition and restricting his community placement options, given the chronic, unrelenting course of Alzheimer's-type dementia.
The deficiencies identified above may be attributable, in part, to Conway's insufficient psychiatric staffing levels. At the time of our tour, Conway was providing 15 hours per week of psychiatric professional time to serve the needs of over 225 residents taking psychotropic medications. Generally accepted staffing standards require at least two full-time (i.e., 80 hours per week) psychiatrists for a caseload of this size.
Conway's inadequate diagnostic services also are due to the fact that Conway's psychiatrist does not function as part of the resident's interdisciplinary treatment team and, therefore, does not access this valuable tool in diagnosing and treating individuals who lack the ability to report their inner experiences. Rather, the psychiatrist relies on brief observations of the resident's behavior during office visits and a verbal report provided to him by the psychological examiners. Based on the content of psychiatric progress notes, this system fails to provide accurate information on the nature of the symptoms targeted for treatment, the course of these symptoms, and the context during which they occur.
Furthermore, Conway fails to integrate psychiatric and behavioral treatments. Generally accepted standards require that psychiatric treatment be integrated with behavioral treatment to ensure that the behavior targeted for treatment with medication is the result of a psychiatric disorder and not a learned behavior that is more appropriately addressed with behavioral treatment.
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At Conway, there is no regular exchange of data between the psychological examiners and the psychiatrist, even in cases where an individual has not responded to repeated and continuous drug treatments. In the absence of an integrated approach, individuals are at risk of receiving unnecessary and excessive medications that have potentially harmful side effects and deprivation of safer and needed psychosocial treatment.
b. Psychotropic Medication Management
The use of psychotropic medication should always be justified by the clinical needs of the resident. Regular and systematic review and adjustment of medications should be conducted to ensure the continued effectiveness of the regimen prescribed. Further, because many types of psychotropic medications carry serious side effects, psychiatric staff must carefully monitor individuals taking these medications.
Conway's psychotropic medication management substantially departs from generally accepted professional standards. As discussed above, medication use is based on incomplete psychiatric assessments and diagnoses and, in many cases, the medication is not appropriate 'tor the diagnosis. Further, there is no system for regularly monitoring side effects or ensuring that medications are being used effectively. In many cases, serious adverse effects on cognition, motor functioning, behavior, and physical health are not assessed or are ignored when present.
Conway also fails to conduct adequate periodic assessments of tardive dyskinesia ("TD") in individuals receiving long-term antipsychotic medications. TD is a serious and potentially irreversible and disabling movement disorder that occurs as a side effect of antipsychotic medications. Even when standardized tests performed by the nursing staff indicate positive findings of TD, the psychiatrist fails to review these tests and take action based on the presence of TD. Moreover, the nursing staff are not trained adequately to perform the standardized tests.
Conway's Pharmacy and Therapeutics ("P&T") Committee does not operate in accordance with generally accepted professional standards. Specifically, it fails to perform some of the core functions of a P&T Committee, including adequate monitoring of Adverse Drug Reactions ("ADRs"), Medication Variance Reports ("MVRs"), and Drug Utilization Evaluations ("DUEs"). For instance, according to the chairman of the P&T Committee, no ADRs were reported to the Committee in the past year. Given the size
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of the facility, the complete absence of ADRs for an entire year is highly suspect. The lack of monitoring for ADRs, MVRs, and DUEs deprives the facility of a systematic approach to the identification of serious problematic trends and their remedies.

The following are examples of Conway's failure to manage the use of psychotropic medications and their potential side effects adequately:

•

Judy Turner has a diagnosis of OCD and has received treatment

with a combination of an anticonvulsant/mood stabilizer and

an antipsychotic, neither of which is an appropriate

treatment for OCD. Ms. Turner's record indicates that her

symptoms worsened despite the treatment. Furthermore, the

anticonvulsant/mood stabilizer was continued for almost four

months despite the fact that repeated laboratory tests

suggested serious and life-threatening pancreatic

dysfunction, which is well-known to occur with this

treatment.

•

Bill Driver has diagnoses of behavior problem, autism, severe

mental retardation, psychotic disorder NOS, pervasive

developmental disorder, OCD and TD. Between June 2000 and

April 2003, Mr. Driver was treated continuously with the

antipsychotic medication, thioridazine, and received

additional treatment with another antipsychotic medication,

risperidone, for approximately two years. Both medications

have the potential to induce or worsen TD. Although there

are safer, equally effective antipsychotic medications

available, there is no documentation that any of these were

considered until October 2002, at which time the

psychiatrist noted the need to obtain consent from

Mr. Driver's mother for the use of a safer antipsychotic

medication, quetiapine. Nevertheless, as of April 2003, more

than half a year later, the psychiatrist had not prescribed

quetiapine treatment for Mr. Driver. Furthermore, there is

nothing in the record to indicate that Conway was monitoring

Mr. Driver's TD during extended trials with thioridazine and

risperidone.

•

Steve Walker has a diagnosis of anxiety disorder NOS, and was

receiving treatment with an antidepressant, fluoxetine; an

antipsychotic, risperidone; and an anticholinergic,

benztropine. Fluoxetine is an appropriate treatment for

depression or panic attacks, and is known to have the

possible side effect of aggression. Nothing in Mr. Walker's

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record indicates the presence of depression or panic attacks. Furthermore, when Mr. Walker subsequently exhibited increasingly aggressive outbursts, Conway's psychiatrist added risperidone to Mr. Walker's treatment without any indication that he considered that the fluoxetine may have been causing or contributing to the aggression. Due to the use of risperidone, Mr. Walker developed tremors and, therefore, an anticholinergic medication, benztropine, was added to treat the tremors. Although psychiatric consultation notes state that Mr. Walker was "tolerating treatment well," nothing in his record indicates that he was monitored for the risks associated with anticholinergic treatment, which include bowel dysfunction and further deterioration of his already compromised cognitive function.
4. Restraint Practices and Procedures
Conway's use of restraints substantially departs from generally accepted professional standards of care and exposes residents to excessive and unnecessarily restrictive interventions. Conway uses a number of mechanical restraint devices to control residents' behavior, including padded mittens, face guards, mitten jackets, arm splints, restraint jackets, papoose boards, and restraint chairs. Generally accepted professional standards dictate that such restrictive interventions: (a) will be used only when persons pose an imminent and substantial risk of harm to themselves or others or in limited emergency situations; (b) will be used only after a hierarchy of less restrictive measures has been exhausted; (c) will be continued only when proven effective; (d) will not be used as punishment, for the convenience of staff, or in the absence of or as an alternative to treatment; and (e) will be terminated as soon as the person is no longer a danger to himself or others. See also 42 C.F.R. § 483.450(b) (3) ("Techniques to manage inappropriate client behavior must never be used for disciplinary purposes, for the convenience of staff or as a substitute for an active treatment program.").
Conway's policy does appropriately provide that restrictive interventions must be the least restrictive intervention necessary to "effectively manage" behaviors and may be used only after positive approaches have proven ineffective. Conway, however, does not adhere consistently to this policy. Rather, staff's over-reliance on restrictive interventions indicates that staff resort to these interventions before attempting lesser restrictive interventions. In 2002, approximately 90 residents (or 16% of
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Conway's residents) wore restrictive devices or were placed in immobilizing restraints. In one living unit, 14 women were placed in mechanical restraints a total of 245 times in 2002. Four of these residents were placed in restraints more than half of the times that they engaged in a behavioral incident. These figures strongly suggest that lesser restrictive measures either: (a) were not utilized prior to placing the residents in restraints; (b) were not given an adequate trial prior to resorting to more restrictive interventions; or (c) were ineffective and alternative lesser interventions should have been attempted. Staff's excessive use of restraints also reflects that the facility has failed to develop appropriate ways to treat residents' problem behaviors, and that staff utilize restraints either for their own convenience, to control behaviors in lieu of effective behavioral treatment, or as a result of insufficient staffing. This is of particular concern given that Conway identified approximately 50 vacant direct care and supervisory staff positions as of April 8, 2003.
Moreover, Conway continues the use of restrictive interventions without modification even when proven ineffective. When a restrictive intervention is effective in preventing or limiting a resident's targeted behavior, the need for the intervention should decrease over time. Conway, however, continues to utilize highly restrictive interventions, often for escalating periods of time, with numerous residents even when the restraint appears to be ineffective. For example, George Prescott was restrained with arm splints for increasing periods of time from January to December 2002 (1/02 - 250 minutes; 3/02 - 455 minutes; 6/02 - 1010 minutes; 10/02 - 952 minutes; 11/02 - 2805 minutes; 12/02 - 1950 minutes). Similarly, staff restrained Angela Hawthorne on a papoose board for escalating periods of time during 2002 (1/02 - 55 minutes; 5/02 - 600 minutes; 6/02 - 985 minutes; 11/02 - 5612 minutes; 12/02 - 7850 minutes). The use of restrictive procedures under these circumstances constitutes either a form of punishment, or the use of restraints for the convenience for staff, both of which are violations of the residents' rights and prohibited by ICF/MR regulations, the American Association on Mental Retardation's policy statements, as well as Conway's own policies.
When restrictive interventions are included in residents' behavior programs, generally accepted professional standards dictate that the need for the intervention must be supported by a formal functional assessment or data that lesser restrictive interventions have proven unsuccessful. As discussed above,
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Conway does not conduct formal functional assessments. Furthermore, although the facility collects data regarding the use of restraints, it does not appear that this data results in reconsideration of alternative methods of dealing with the residents' targeted behaviors or modification of residents' behavior programs. Moreover, contrary to generally accepted standards, there is no procedure whereby an increasing number of restrictive interventions triggers a review of a residents' behavioral treatment by the entire treatment team.
Whether restrictive interventions are effective cannot be measured accurately if the behavioral and restraint data upon which treatment teams rely is not accurate. As discussed above, data is not collected on a consistent basis at Conway. We found numerous additional inconsistencies in the documentation recording the use of restraints. For example, one January 2002 report documents that Kristin Burke was restrained 4.5 times longer than another report for the same month. A November 2002 report reflects that Florence Snyder was restrained with long arm splints nearly three times longer than another report for that same month. On one unit, staff had failed to record daily behavioral data for any of the residents during the month of our visit and could not describe the meaning of the terms on the data recording sheet that they were supposed to be utilizing. The data recording sheet for a resident on another unit had not been completed since August 2002 (i.e., eight months of failure to record data) and the unit supervisor could not say whether he had ever used the data recording sheets. Given that the psychological examiners rely on this data to determine whether to include or continue restrictive interventions in residents' behavioral programs, the accuracy of this data is essential to ensure that restraints are utilized only when necessary and effective. Cf. 42 C.F.R. § 483.450(b) (2) ("Interventions to manage inappropriate client behavior must be employed with sufficient safeguards and supervision to ensure that the safety, welfare and civil and human rights of clients are
adequately protected.").
Conway requires that all behavior programs containing restrictive interventions be approved by the treatment team, Chief Psychologist, guardian, physician, Superintendent, and the Human Rights Committee ("HRC"), which is comprised of Conway staff, community representatives, and consumer representatives. We found that the restrictive procedures are approved by the treatment teams, and that the facility is particularly conscientious in securing consents from family members and guardians. Review of these programs by the Chief Psychologist and the HRC, however, is
29

inadequate. As discussed above, at the time of our review, the position of Chief of Psychology was vacant and an off-site psychologist had been retained to review and approve the behavioral programs. This psychologist is unfamiliar with the individuals whose programs he reviews, has little time for direct observation, and provides inadequate supervision and guidance to the psychological examiners. This arrangement consequently leaves residents without adequate review by a licensed professional.
Similarly, the HRC fails to review all available, relevant data and to consider lesser restrictive alternatives thoroughly prior to approving the use of restrictive interventions. The committee frequently fails to require an explanation of the lesser restrictive techniques that have been utilized, question why restraints continue to be necessary, and/or inquire if staff are teaching the resident replacement behaviors to reduce the need for restraints. Moreover, the committee approves programs even when documentation does not support the continuation of restrictive interventions or reflects that the resident is suffering side effects from the intervention. In fact, in 2002, the HRC only disapproved one program of the 158 it reviewed - this program had been suggested by a family member. The HRC never disapproved a program suggested by facility staff.
C. PROTECTION FROM HARM
Conway fails to provide basic oversight of resident care and treatment that is critical to ensuring the reasonable safety of its residents. In order to maintain a reasonably safe environment for residents, institutions must have an effective system for detecting abuse and neglect. See 42 C.F.R. § 483.420(d) (1) (facilities participating in Medicaid "must develop and implement written policies and procedures that prohibit mistreatment, neglect or abuse of the client");§ 483.420(d)(3) ("[t]he facility must have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while the investigation is in progress"). The most fundamental requirement for a minimally adequate system of oversight is a process for determining a resident's cause of death. Another critical component is an "incident management system," i.e., a system for reporting and investigating incidents involving serious injuries to residents, tracking and trending these incidents, and implementing and monitoring corrective action to avoid future incidents. Additionally, residents must be afforded and advised of their rights as well as the process for reporting violations of these rights.
30

As described in detail below, the procedures employed at Conway for protecting residents from harm are grossly inconsistent with generally accepted professional standards. Most alarming is the absence of any meaningful mortality review. Further, although Conway has implemented some significant improvements in its incident management system, serious deficiencies remain. Finally, Conway does not afford and advise its residents of rights necessary to ensure their safety.
1. Mortality Reviews
Between 1993 and the time of our review, 75 Conway residents died. For the vast majority, Conway did not identify the cause of death although we requested this information. Morever, Conway failed to conduct a mortality review or investigation for any of the 75 deaths. Without a mortality review or investigation, there is no way to determine whether any of these 75 residents died of natural causes or terminal illness, or whether they died as a result of neglect or abuse. Conway's failure to perform meaningful mortality reviews is a substantial departure from generally accepted standards of care and places all Conway residents at risk of serious harm.
Conway officials informed us that as of late 2002, a statelevel panel began reviewing resident deaths at all of the Arkansas Human Developmental Centers. However, when we toured in May 2003, Conway had not received any minutes of the panel's deliberations, nor any documentation, findings, or recommendations with respect to the panel's reviews. Without such information, it is impossible for Conway to determine whether their residents' deaths are reviewed, the quality and timeliness of the reviews, or whether any of the deaths are due to abuse or neglect. Given the egregious deficiencies in medical care at Conway, discussed above, the absence of an accountable system of mortality review is particularly disturbing.
2. Incident Management
Facility records indicate that Conway's residents are frequently exposed to harmful incidents. Specifically, in 2002, Conway generated approximately 270 incident reports involving resident injuries that were either self-inflicted or caused by staff members or other residents. These injuries include, but are not limited to, 84 abrasions, bruises, and cuts; 77 injuries requiring staples or sutures; 42 bites; 19 small bone fractures; 14 other fractures; and 4 incidents of choking. These reports do
31

not include all resident injuries that occurred in 2002 because they do not include any incidents where the description suggested that the injury had a health-related cause (e.g. 1 an injury caused by a fall during a seizure) . During this same time period/ the facility also reported 45 incidents involving allegations of abuse or neglect.
To its credit/ Conway has developed an incident management system that has a number of positive features. Specifically/ the reporting policy defines essential termsi it sets adequate time frames for internal and external reporting as well as the completion of investigationsi it appropriately addresses the need to protect clients immediately from staff accused of abuse or neglecti and it appropriately requires the termination of staff found to have abused or neglected residents as well as the termination or discipline of staff who fail to report or delay reporting suspected abuse or neglect. Conway 1 s investigations of serious incidents where abuse or neglect is alleged are conducted by trained investigators and are generally comprehensive/ appropriate/ and timely.
Nevertheless/ Conway 1 s investigations of serious incidents where no abuse or neglect is alleged substantially depart from generally accepted standards. With rare exception/ incidents where abuse or neglect is not alleged receive an informal "administrativen review only. These informal reviews commonly consist of a one-page synopsis of the incident, the attention paid to the resident 1 S immediate needs/ and any corrective actions taken. They usually do not address whether there is any evidence of abuse or neglect and/ if the issue of abuse or neglect is raised at all 1 the Team Leader routinely states that there is no such evidence. These administrative reviews are not conducted by independent investigators. Rather, they are conducted by staff directly responsible for the supervision of the staff member(s) involved in the incident. Furthermore, the staff conducting the investigation are not properly trained in investigation methodologies. The failure of the facility to consider abuse or neglect and conduct comprehensive, independent investigations of such serious injuries as fractures/ vaginal tearing 1 broken teeth/ cuts requiring sutures, and bites/ potentially places residents at great risk of harm.
Notably, the facility recently developed a policy to guide the investigation of injuries of unknown origin. Conscientious implementation of this policy and the extension of this policy to serious injuries of known origin could significantly improve the
32

quality of Conway's investigation process and protections afforded its residents.
Basic client protection also requires that serious incident investigations be reviewed by an objective party who has the expertise to critique investigations and identify necessary remedial actions. It is commendable that the facility's superintendent reviews all investigations. However, to ensure adequate expertise and objectivity, the Central Incident Committee also should review incident investigations. There is no documentation in the Committee's minutes reflecting that such review is conducted. The lack of an adequate review of investigations by parties not associated with the unit on which the incident occurred exposes residents to risk of harm.
Generally accepted professional standards of care also require that facilities track and trend incident data to identify potentially problematic trends/ and to identify, implement, and monitor implementation of corrective action. Conway purports to track incident information and the implementation of corrective actions; however, it relies upon reports that do not identify all of the corrective actions proposed in response to incidents and whether the corrective actions were implemented. More importantly, there is no documentation that these reports are reviewed by the Central Incident Review Committee or other parties who can effect change. Nor is there any documentation that anyone uses the information contained in these reports to identify persons who are frequent victims or aggressors, or to identify environmental, staffing, or other caregiving deficiencies. Appropriate tracking and trending of this information is essential in protecting residents from future harm.
Pursuant to generally accepted standards of professional practice, Conwayts incident management policy is also deficient in that it does not include a procedure whereby residents who meet specific thresholds concerning incident involvement (i.e., involvement in a very serious incident or involvement in a certain number of incidents over a set period of time) are flagged as "at risk." When such triggers occur/ it is essential that the resident's treatment team convenes to review the treatment plan and make any necessary modifications.
Separately, although Conway's definition of physical abuse appropriately includes the use of restrictive procedures as punishment, it fails to include other misuses of these procedures, such as using restrictive procedures: (1) without approval;
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(2) when lesser restrictive measures are appropriate; (3) for unnecessarily long periods of time; (4) for staff convenience; or (5) as a substitute for active treatment. These procedures, many of which are extremely intrusive and deny the resident all or nearly all free movement, are forms of physical abuse and should be treated as such.
Lastly, in order to protect all residents from abuse and neglect, all staff and residents must be trained in the processes for reporting abuse and neglect. Conway's training is inadequate. It is commendable that every member of Conway's staff receives abuse and neglect training during orientation. Only direct care staff, however, are re-trained on this issue during the six-month re-training program, and it is unclear from the documentation we were provided whether and, if so, how comprehensively this is covered in the annual re-training curriculum. Moreover, there is no formal, organized training in self-protection for the residents at Conway.
3. Residents' Rights
In order to be reasonably free from harm, all residents of facilities such as Conway retain certain rights and should be informed of these rights. Conway has developed a policy setting forth the residents' rights and explains these rights to residents and their families or guardians upon admission. Although the policy identifies some aspects of appropriate treatment, it does not meet generally accepted professional standards in many important respects. First, the policy does not clearly specify whether a resident or his guardian may consent to the resident's participation in research studies. If a resident is able to give informed consent, the decision to participate in research studies should be the resident's, and not his guardian's. Second, the policy states that staff who are determined to have abused residents "could" be terminated. This contradicts other facility policies that state that such an employee "shall" be terminated immediately. Third, Conway's resident rights policy states that a resident may refuse medical treatment "unless such treatment is in his/her best interest or is necessary to preserve the individual's life." This raises two problems: (a) assuming that all medical treatment is in a resident's best interest, residents are deprived altogether of the right to refuse medical treatment, and (b) the policy entirely circumvents the ability of those residents who are capable of making informed decisions to make decisions regarding end-of-life issues.
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D. SPECIAL EDUCATION
Conway's provision of special education services does not comport with federal law because it fails to provide individualized educational programs that are reasonably calculated to enable students to receive an appropriate education. At the time of our visit to Conway, there were 32 residents who qualified for special educational services.
Federal law conditions federal funding of State special education programs upon the requirement that the State provide a free and appropriate public education ("FAPE") to all children with disabilities aged 3 to 21 who reside in the State. See Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et ~ The IDEA requires educational agencies to develop an individualized education program ("IEP") for each child having a disability. The required elements of the IEP include, but are not limited to: (a) an assessment of present levels of educational performance; (b) a statement of the individualized special education, related services/ and supplementary aids to be provided to the child to meet stated objectives and goals; and (c) a statement of how progress toward annual goals and objectives is to be measured. 20 U.S.C. § 1414(d). The IEP must include a statement of transition service needs for each student with a disability beginning at age 14; such transition services must be outcome-oriented and promote movement from school to post-school activities/ including post-secondary education/ vocational training, integrated employment, continuing and adult education/ adult services, independent living and community participation. Id. § 14 01 (3 0) (A) . The IDEA requires such "related services" as are necessary to permit the child to benefit from instruction. Id. § 1401(22) . 10 In addition/ federal regulations require that children with disabilities be educated in the least restrictive environment. Id. § 1412(a) (5). In short/ the IDEA requires
10 "Related services" include transportation and such developmental, corrective/ and other supportive services (including/ but not limited to, speech-language pathology and audiology services/ psychological services/ physical and occupational therapy/ recreation, social work and counseling services, and orientation and mobility services) as may be required to assist a child with a disability to benefit from special education. The term also includes school health services/ social work services in schools/ and parent counseling and training. 20 U.S.C. § 1401(22).
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"access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Board of Educ. v. Rowley, 458 U.S. 176, 201 (1982).
1. Assessments
Under the IDEA, Conway must conduct a comprehensive assessment of each qualified child to determine the child's individualized educational needs. 34 C.F.R. § 300.320. Conway's assessments are out-of-date, age-inappropriate, and do not provide discrete data to identify accurately a student's functional needs for daily living skills. For example, Conway evaluated Rob Quist in April 2002 by utilizing the Brigance Diagnostic Inventory of Basic Skills, a tool designed to evaluate readiness, reading, language arts, and mathematics. The manufacturers discontinued this assessment tool in 2001 and have removed it from print. Conway also utilizes regularly the Brigance Diagnostic Inventory of Early Development (Birth to Seven Years) . This tool is not age-appropriate for Conway's student population, all of whom are at least 11 years of age. In addition, Conway uses the Life Centered Career Education Modified Curriculum for Individuals with Moderate Disabilities (LCCEM) for six students. In each of those cases, assessment data derived from this test was not incorporated into students' IEP goals/objectives. Even where a student scored a zero (indicating non-competent) in a particular skill on the LCCEM, and did so on consecutive yearly tests, that skill was not listed as a "need" on the assessment summary.
2. Individualized Special Education and Related Services
Children with disabilities have the right to individualized special education and related services. 34 C.F.R. § 300.26. Because of the numerous problems with Conway's assessments, Conway's educational programs are fragmented and often do not meet each student's individualized needs. Specifically, Conway does not provide its students: (1) sufficient hours of instruction; (2) instruction structured to produce functional educational outcomes; (3) access to assistive communication technology necessary for students to benefit from instruction; or (4) adequate, individualized IEPs.
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a. Amount of Instruction
Children with disabilities residing in State facilities should not be denied services that the State provides to children without disabilities. 29 U.S.C. § 794. At the time of our visit, the scheduled daily instructional time for Conway students ranged from 45 minutes to three hours per day. This amount of instruction is clearly inadequate to meet the needs of the Conway students. Indeed, Arkansas public schools are required to provide all students with six hours of instruction per day. Moreover, the actual hours of instruction provided to Conway students are even less than the hours indicated on the students' schedules. During our visit, instructors and/or students frequently arrived late for class or terminated class early. For instance, although scheduled for class at 10:45 a.m., Kris Norton did not arrive until 11:11 a.m.; Grace Kendall,s lesson was scheduled at 8:30a.m., but did not start until 9:10a.m.; Becky Frost,s lesson was scheduled at 9:00a.m., but did not start until 9:30a.m.; Rob Quist 1 s lesson was scheduled for 9:00a.m., but did not start until 10:00 a.m. Gail Brown,s 45-minute class lasted on~y six minutes; Ms. Frost,s 45-minute class lasted only one minute; Mark Harrison 1 s 45-minute class lasted only eight minutes.
b. Quality of Instruction
The IDEA requires that special education services include specially designed instruction that meets the unique needs of a child with a disability. 34 C.F.R. § 300.26. Conway,s instructional methods fail to meet this requirement. Conway has no specially designed special education curriculum. Student instruction is comprised of a random set of non-functional activities.
We observed numerous instructional sessions during our visit that demonstrated that Conway,s instruction is poorly planned and executed. For instance, we observed that instructors do not engage the students to attend to lessons; teachers do not appropriately prepare instruction and instructional settings to maximize the students, learning; instructors do not re-position students who are poorly positioned in their wheelchairs to improve their fields of vision or comfort levels; and teachers introduce instructional tasks and, within minutes, either drop that instruction entirely or complete the task for the student.
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c. Assistive Technologies and Services
The IDEA requires that IEP teams consider the communications needs of each child and whether or not the child requires assistive technology devices or services. 34 C.F.R. § 300.346. If staff determine that a student has such needs, these needs should be included in the student's IEP. Despite the inclusion of an assistive communication device in their IEPs, a number of Conway students that we observed did not have access to their devices during instruction. Mr. Quist's instructor did not utilize his computerized communications device during his lessons even though his IEP requires this use. Although Marissa Isaacs' educational objective is to make choices via the use of a communication device, she did not have access to her communication device during instructional sessions.
d. Individualized Education Programs
The IDEA requires Conway to develop IEPs for each of its students. 34 C.F.R. §§ 300.342-47. The IEPs developed by Conway staff fail to identify and address appropriately the students' identified special education and related service needs. Specifically, the similarity of plans and objectives from student to student demonstrates that many of these goals and objectives are not individualized. For example, despite the fact that Carolyn Biggins' assessments reveal no limitations in identifying product labels, basic food groups, or functional safety signs, her IEP team has selected those tasks as both her annual goals and short term objectives. Ms. Biggins' documented need in her Individual Program Plan for additional skill development in other areas, such as improved fine motor skills, language, self-help, simple food preparation, money usage, and exercise, however, are not incorporated into her IEP.
3. Related Services
In providing special education to children with disabilities, the State must address each child's identified special education and related services needs. 34 C.F.R. § 300.300(3) (i). In particular, the IDEA requires Conway to consider the behavioral needs of students when planning their educational instruction. 34 C.F.R. § 300.346. Conway fails to provide adequate and effective behavioral services to permit teachers to deal effectively with disruptive behaviors. For example, during our observation of a 35-minute class, we counted 52 episodes of selfinjurious behavior (hitting his head with his hands) by Gregory
38

Tamblin. Although the teacher made several attempts to block Mr. Tamblin, she was unable to ameliorate his behavior. The instructor's inability to provide effective behavioral interventions to address the student's behavioral episodes in the classroom significantly limited his ability to benefit from class. Similarly, educational assessments for Mr. Norton indicate that his behavioral episodes prevent him from working successfully in groups; however, no strategies are incorporated in his IEP annual goals or short-term objectives to address his behaviors. Despite documentation to the contrary, his IEP indicated "none needed" in the section on managing behavior.
4. Annual Goals and Objectives
The IDEA requires that IEPs contain measurable annual goals and objectives, including benchmarks and short term objectives. 34 C.F.R. § 300.347. In order to determine if a student has met these goals and objectives, instructors must maintain accurate documentation of each student's educational progress. Specifically, instructors should maintain monthly educational progress notes, including descriptive statements referring to the IEP objectives, the data collected related to the measurement criteria, and the student's recent progress to date. Recommendations to modify a student's IEP should be based on a clear rationale derived from an analysis of this data.
Conway's documentation does not contain the information required to permit instructors to determine if their students are progressing toward their goals and objectives. The lack of reliable data for each IEP makes it difficult, if not impossible, to measure a student's progress toward his or her goals. Furthermore, review of individual records reveals that IEPs frequently are not modified when a student consistently fails to make progress toward a stated objective. For example, the IEPs of Jim Carney, Gail Brown, and Grace Kendall in 2001 and 2002 had identical objectives despite their lack of progress. It is unacceptable that students' objectives are continued and program plans are unrevised from one year's IEP to the next when the program has failed to produce positive results and no new instructional strategies have been tried.
5. Transition Services
The IDEA requires that transition services be planned for students above 13 years of age. Such services must be outcomeoriented, promoting transition from the school setting to post-
39

secondary education/ vocational training/ integrated employment/ continuing and adult education/ adult services/ independent living/ and community participation. 34 C.F.R. § 300.29.
Frequently/ Conway fails to plan adequately for the transition of its students. For example/ Mr. Quist and Dave Moorhouse/ both age 14 1 were denied transition plans even though the teams had identified a number of desired post-school outcomes for them. Marianne Forest 1 at age 18 1 did not have a transition plan -- every transition service indicator was checked "none needed."
6. Least Restrictive Environment
Federal law and regulations require that 1 to the maximum extent appropriate/ children with disabilities/ including children in institutions like Conway 1 receive educational services in the least restrictive setting. 34 C.F.R. § 300.550. Special classes/ separate schooling, or other removal of children with disabilities from the regular educational environment may occur only if the nature or severity of the student's disability is such that education in regular classes with the use of supplementary aids and services cannot be satisfactorily achieved. 34 C.F.R. § 300.550.
Although Conway has placed six of its 32 students in the local public school/ there are a number of problems with this arrangement. Of those six students/ three attend merely one hour per day; the other three attend one and one-half hours per day. Once at the public school/ all educational services are provided in a Conway-dedicated classroom. This classroom operates independently from the rest of the school and is staffed exclusively by Conway employees. Conway students do not matriculate with other public school students at any time during the day. Moreover, the Conway-dedicated classroom is not an appropriate educational environment. Half of the classroom space is utilized by the public school 1 S occupational and physical therapists, none of whom provide services to the Conway students. Furthermore/ the elementary school environment is ageinappropriate for the six Conway students who range in age from 11 to 13 years old 1 generally the age of middle school students.
The remaining 26 special education students receive education at the Conway facility. Due to an ongoing asbestos abatement project, several classrooms were not being used at the time of our visit. Instructors were providing educational services for many
40

students in the living units (bedrooms, dining rooms, and living areas), often while other distracting activities were going on in the same space. Instructors only brought materials with them that they could carry to and from the chapel, which served as a staging area for supplies. As a result, these students did not experience school in an appropriate setting and with appropriate instructional materials.
E. SERVING PERSONS IN THE MOST INTEGRATED SETTING APPROPRIATE TO THEIR INDIVIDUALIZED NEEDS
Arkansas is failing to serve some residents of Conway in the most integrated setting appropriate to their individualized needs, in violation of Title II of the ADA and the regulations promulgated thereunder. One such regulation - the "integration regulation"- provides that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The preamble to the regulations defines "the most integrated setting" to mean a setting "that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. § 35, App. A at 450.
In construing the anti-discrimination provision contained in Title II of the ADA, the Supreme Court has held that "[u]njustified [institutional] isolation . . is properly regarded as discrimination based on disability." Olmstead v. L.C., 527 U.S. 581, 597, 600 (1999). Specifically, the Court established that States are required to provide community-based treatment for persons with developmental disabilities when the State's treatment professionals have determined that community placement is appropriate, provided that the transfer is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 602, 607.
Further, President Bush, as part of his New Freedom Initiative, has decreed it a major priority for his Administration to remove barriers to equality and to expand opportunities available to Americans living with disabilities. As one step in implementing the New Freedom Initiative, the President, on June 18, 2001, signed Executive Order No. 13217, entitled "CommunityBased Alternatives for Individuals with Disabilities." This Order emphasized that unjustified isolation or segregation of qualified
41

individuals with disabilities in institutions is a form of prohibited discrimination and that the United States is committed to community-based alternatives for individuals with disabilities. Exec. Order No. 13217, §§ 1(a)-(c), 66 Fed. Reg. 33155 (June 18, 2001) .
Regrettably, the State of Arkansas has not taken adequate steps regarding: (a) community placements; (b) assessments; (c) communication of information on community resources to residents, guardians, and family members; and (d) execution of the discharge process. At present, there are too few community resources in place to meet the needs of Conway residents. In addition, as a consequence of Conway's procedures, individuals who desire to live in the community, and who reasonably can be accommodated there, are denied the opportunity to live and work in more integrated settings in violation of the State's obligations under Title II of the ADA.
1. Inadequate Numbers of Community Placements
A review of the discharges from Conway for the past eight years reveals an extremely low number of community placements. From 1994 through 2002, Conway discharged 56 residents, or an average of 6.2 residents per year. Based on Conway's average census for those years, which ranged from 570 to 615 residents, Conway discharged only about one percent of its population yearly over that period. Moreover, only 13 of these 56 discharges were to community placements in Arkansas, or an average of 1.4 residents per year. In fact, of the 38 discharges from Conway since 2000, many merely represent a transfer of the resident from Conway to another institutional setting such as a nursing home, hospice, or another human development center.
In 2003, only nine of the approximately 550 Conway residents (1.6%) had been referred for residential placement out of the institution. Of the nine, one has been on the waiting list for 22 years, and three others have been on the list for more than six years. Not one of the 62 persons who have been admitted to Conway since 1993 has been placed or recommended for placement in a community-based facility. The pace by which Conway discharges residents to community placements is inadequate, and subjects residents to continued unnecessary isolation in the institution.
42

2. Inadequate Assessment
Generally accepted standards regarding the transition of persons with developmental disabilities who reside in institutions to the community require that treatment teams carefully evaluate the needs of each individual by taking into account the person's strengths, limitations, and preferences, and identify services to be provided in the most integrated setting appropriate to the individual's needs. Conway has no comprehensive facility policy by which to guide transitions from the institution to community living arrangements. Without such a roadmap on how to construct an appropriate placement, transition planning is inconsistent and ineffective.
Contrary to the requirements of the ADA, Conway's interdisciplinary teams appear to endorse the retention of individuals in the institution. The teams do not develop complete analyses of how and where each resident can be appropriately served in the most integrated setting. For example, in 2003, Brian Featherston's treatment team determined that Conway remained his most integrated setting because he "continues to benefit from the services and training provided at CHDC,n and he "has lived here for many years and considers this his home.n Neither of these reasons justifies continued isolation in an institutional setting. The team did not discuss any plans to explore options 1n the community with Mr. Featherston's guardians, and did not explain its reasons for determining that he is not appropriate for inclusion in the Medicaid waiver program. In short, the team failed to provide a comprehensive assessment regarding the most integrated setting in which Mr. Featherston can be appropriately served.
Interdisciplinary teams assert that Conway is the most integrated setting even for those residents who have communicated their desires for community placement. For example, despite Holly DiNardo's stated goal to live in a home or group home, Ms. DiNardo's program plan states that Conway remains her most integrated setting. Her plan catalogues numerous self-care and daily living skills which she demonstrates daily, including grooming and personal hygiene, clothing selection, laundry skills, helping staff with chores, and running errands for staff. Ms. DiNardo also has three jobs on Conway's campus. In view of the array of skills that Ms. DiNardo possesses, the conclusion that Conway is her most integrated setting is highly questionable.
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Even where a treatment team recommends that community placement is appropriate for certain residents, there is no evidence that Conway actively pursues community placement. For example, despite Conway's 1997 recommendation that Peggy Gandy transfer to the community, Ms. Gandy remained institutionalized at Conway as of February 2003. Pre-1997 placements in community residences were not successful for Ms. Gandy, but her team did not discuss why her prior placements were unsuccessful, and did not develop measures to improve the chance of her future success in community placements. Her August 2002 plan noted that she had "significant strength in community living skills in that she understands how to access many community services" and that she is "unhapp[y] with her placement at Conway." Given the unreasonably slow response to its 1997 recommendation, the treatment team has neglected its responsibility to support Ms. Gandy in her desire for successful community placement through the development of a comprehensive transition plan. Similarly, Conway professionals recommended Georgia Weston for community placement in September 1996i her September 2002 plan suggests "possible placement in a small IF/MR in the community. . during the next 3-5 years." This is not an acceptable time frame. Glynis Martin was recommended for community placement 23 years ago, yet, according to her February 2002 plan, her need for support in ambulation and personal skills, and for follow-along medical, speech, and occupational therapy services has prevented her from leaving the institution. There is no evidence that Ms. Martin's treatment team has developed an adequate transition plan for her during the past nearly quarter of a century.
3. Inadequate Information on Community Resource
Generally accepted professional standards mandate that, in order for individuals, and, as appropriate, their families or guardians, to make informed choices about placement in the community, staff must provide them with adequate information about community options and resources. The decision whether to remain in the institution or to transfer to a community-based program is not meaningful if it is not an informed decision. Conway does not ensure that residents and their families or guardians are fully informed. Staff does not provide adequate opportunities for residents and their families or guardians to experience and learn about alternative living arrangements, community day programs, and community employment options. Although Conway arranged leisure and recreational visits into the community during the period from January 2002 to April 2003, there were no documented visits to other residential settings or employment sites to provide an
44

awareness of the variety of choices that would be available to residents. Indeed, there is no evidence that Conway has provided any educational opportunities regarding community options to several of the individuals and their families or guardians who have been on the wait list for placement for many years.
4. Inadequate Discharge Process
Successful implementation of community transition depends on the development of a transition plan that incorporates the following elements: a current individualized plan; current assessments of skill areas; special consultation reports to evaluate special needs, where appropriate; an action plan identifying needed individual supports in the community along with timelines by which specified staff are to develop the supports; identification of personal preferences for home, school, leisure, and work; identification of staff training needed in the community, including person-specific training to be provided before, during, and after transition; identification of necessary fiscal resources; a list of all assistive devices being used currently or still needed for placement to occur; a list of activities to be completed before, during, and after transition; and requirements for "follow alongn after a placement has occurred.
Discharge planning summaries prepared by Conway frequently are not comprehensive. Based on a review of discharge records, summaries are essentially lists. They do not provide details on the specific individualized service for each need identified. For example, Ms. Martin's discharge plan is not sufficiently comprehensive to assist Ms. Martin, Conway, or community providers in making a successful community transition. Specifically, Ms. Martin's discharge summary lists the following services needed for transition: attendant for personal care, grooming, and hygiene; transportation; communication facilitation; work skills training and supervision; recreational services; and occupational, physical and speech therapy. Without more detail regarding these services and the identification of a specific staff member who is assigned to secure each service, a successful transition is unlikely to occur. The absence of a comprehensive community transition plan has the potential to significantly delay timely transition and can result in failed community placement.
45

5. Inadequate Community-Based Services

We applaud the efforts that have been expended in Arkansas to develop an Olmstead Plan to address the development of additional community resources. However, the current lack of community-based services to address fairly typical needs of persons with developmental disabilities severely hampers the State's ability to serve persons in the most integrated setting appropriate to their needs. According to Conway staff, small Intermediate Care Facilities for the Mentally Retarded (ICF/MR), and group homes in Arkansas do not have the capability to deal with persons who are behaviorally challenged, and it is difficult to arrange community services for medically challenged people. Conway staff report that in order for a resident of Conway to transition to a community-based home, he or she must be able to take medication, have behaviors under control, and be independent in self-care and daily living skills. Arkansas' lack of community resources for persons with developmental disabilities thwarts the implementation of treatment teams' decisions recommending community placement.

Where community transition does occur, the State should provide adequate follow-along services. See Armstead v. Coler, 914 F.2d 1464, 1467 (11th Cir. 1990); Thomas S. v. Brooks, 902 F.2d 250, 254-55 (4th Cir. 1990); Halderman v. Pennhurst State Sch. and Hosp., 834 F. Supp. 757, 766 (E.D. Pa. 1993). This component should include face-to-face visits with the former resident; interviews with staff, family, and guardians; and careful review of the individual's records. Staff from Conway should utilize measurable criteria by which to ensure that the individual is safe and healthy in the new environment, and that the transition is being implemented as planned. Conway's follow-along is primarily via telephone contact and lasts only three months after the resident's placement. This procedure is not sufficient to ensure that the individual is safe in the new residence and that the transition has been appropriate and successful.

III.

REMEDIAL MEASURES

To remedy the identified deficiencies and protect the constitutional and statutory rights of Conway residents, Arkansas should implement promptly, at a minimum, the remedial measures set
forth below:

46

A. Health Care
1. Provide appropriate medical care to all residents, including routine screening and preventive care, and medical assessment and treatment, in a timely and on-going basis.
2. Develop and implement an adequate documentation system that ensures timely, accurate, and thorough recording of all medical and nursing care provided to each resident.
3. Ensure that all staff in direct contact with residents are regularly certified in carpiopulmonary resuscitation.
4. Provide appropriate neurological and epileptological care for all residents with seizure disorders, including assessment, diagnosis, and medication management.
5. Develop an appropriate and comprehensive system for screening, identifying, assessing, supporting, and monitoring residents with physical and nutritional support needs. Provide safe and appropriate seating systems, alternate positioning and AAC devices, and mealtime support plans to all residents with an identified need. Ensure that staff responsible for screening, identifying, assessing, transferring, supporting, and monitoring residents with physical and nutritional support needs are trained and supervised adequately on an on-going basis.
6. Ensure that the physical space, staffing, and supervision during mealtimes are sufficient to accommodate each resident's specialized needs and ensure the safety of all residents.
7. Develop a comprehensive assessment system for residents in need of occupational therapy, physical therapy, and communication services. Provide a sufficient number of appropriately trained staff, adequate resources, and quality assurance programs to ensure the provision of appropriate physical therapy, occupational therapy, and communication services.
47

8. Develop and implement an effective infection control program.
9. Develop and implement a safe and effective system of medication administration.
10. Develop and implement an appropriate quality assurance program for medical care.
B. Habilitative Treatment and Restraints
1. Provide residents with habilitation, training, and behavioral programs that are adequate to protect residents' personal safety and prevent unreasonable use of restrictive interventions.
2. Ensure that psychology staff are trained and supervised adequately. Provide on-going competencybased training for all psychology, supervisory, and direct care staff in treatment and behavioral interventions and data collection, including the proper use of restraints.
3. Ensure that psychiatric staffing levels are sufficient to meet the needs of residents.
4. Ensure that all residents receiving psychotropic medications receive effective psychiatric services, including assessment, diagnosis, and medication management, on a timely and on-going basis.
5. Ensure that only the least restrictive restraint techniques necessary are utilized, and, except in an emergency, that restraints are used only in connection with a behavioral treatment program and never as punishment or for the convenience of staff.
6. Provide quality assurance programs to ensure that restraints are used effectively and properly. Ensure that ineffective behavior programs are modified or replaced in a timely manner.
48

C. Protection from Harm
1. Ensure that an adequate mortality review is conducted, and findings and recommendations are documented, for every resident death.
2. Develop an adequate system for investigating, tracking, and managing incidents of resident injury and ensure that all staff and residents are trained adequately on processes for reporting abuse and neglect. Provide quality assurance programs to ensure the reasonable safety and rights of residents.
D. Special Education
1. Provide adequate special education services for all qualified residents in compliance with the IDEA.
E. Serving Persons in the Most Integrated Setting Appropriate to Their Individualized Needs
1. Ensure that all residents are regularly and appropriately assessed to determine whether they are receiving services in the most integrated setting appropriate to their individualized needs in accordance with the ADA. Provide adequate education about available community placements to residents and their families or guardians to enable them to make informed choices. Provide adequate staff training and resources to ensure timely and adequate transition planning.
*****
We hope to continue working with the State in an amicable and cooperative fashion to resolve our significant concerns regarding the care and services provided at Conway. We will be sending to you under separate cover our consultants' evaluations of Conway. Although their reports are their work - and do not necessarily represent the official conclusions of the Department of Justice their observations, analyses, and recommendations provide further elaboration of the issues discussed in this letter and offer practical assistance in addressing them.
49

/s/ R. Alexander Acosta

 
 Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 1 of 24
CLOSED,JTK,PROTO
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:09−cv−00033−JLH

USA v. Arkansas, State of et al Assigned to: Judge J. Leon Holmes Cause: 42:12101 American Disability Act for Handicapped
Plaintiff

Date Filed: 01/16/2009 Date Terminated: 06/08/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

USA

represented by Arethea A. Coles U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−305−3581 Fax: 202−514−6903 TERMINATED: 01/06/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin O. Tayloe , Jr. U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−8103 Fax: 202−514−6903 Email: benjamin.tayloe@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher N. Cheng U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−8892 Fax: 202−514−6903 Email: christopher.cheng@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Isaac R. Campbell U. S. Department of Justice − Civil Division 20 Massachusetts Avenue NW Washington, DC 20530 202−616−8476 Fax: 202−616−8460 Email: isaac.campbell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline K. Cuncannan U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−616−2556

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 2 of 24
Fax: 202−514−6903 Email: Jacqueline.Cuncannan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kerry Krentler Dean U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−1841 Fax: 202−514−6903 Email: kerry.k.dean@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard M. Pence , Jr. U. S. Attorney's Office − Little Rock Eastern District of Arkansas Post Office Box 1229 Little Rock, AR 72203−1229 501−340−2626 Email: richard.pence@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shanetta Y. Cutlar U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−6255 Fax: 202−514−0212 TERMINATED: 01/06/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Schwei U. S. Department of Justice − Civil Division 20 Massachusetts Avenue NW Washington, DC 20530 202−305−8693 Email: daniel.s.schwei@usdoj.gov ATTORNEY TO BE NOTICED
Laura L. Coon U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−1089 Fax: 202−514−0212 Email: Laura.Coon@usdoj.gov ATTORNEY TO BE NOTICED
Matthew J. Donnelly U. S. Department of Justice − Civil Rights Employment Litigation Section, PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530 205−514−6255 Email: matthew.donnelly@usdoj.gov ATTORNEY TO BE NOTICED

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 3 of 24
Nicholas M. May U. S. Department of Justice − Civil Rights Employment Litigation Section, PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−514−8800 Fax: 202−514−6903 TERMINATED: 01/06/2011 ATTORNEY TO BE NOTICED
Vincent P. Herman U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−305−3318 Fax: 202−514−0212 Email: Vincent.Herman@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant Arkansas, State of
Defendant Mike Beebe Honorable, Governor of the State of Arkansas, in his official capacity only

represented by Lori Freno−Engman Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 (501) 682−1314 Email: lori.freno@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 717−236−9675 Email: tyork@yorklegalgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cordelia M. Elias York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 717−236−9675 Email: celias@yorklegalgroup.com ATTORNEY TO BE NOTICED
Donald B. Zaycosky York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 717−236−9675 Email: dzaycosky@yorklegalgroup.com ATTORNEY TO BE NOTICED
represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 4 of 24

ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia M. Elias (See above for address) ATTORNEY TO BE NOTICED

Donald B. Zaycosky (See above for address) ATTORNEY TO BE NOTICED

Defendant
John M Selig Director of the Arkansas Department of Human Services, in his official capacity only

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia M. Elias (See above for address) ATTORNEY TO BE NOTICED

Donald B. Zaycosky (See above for address) ATTORNEY TO BE NOTICED

Defendant
James C Green Ph.D, Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia M. Elias (See above for address) ATTORNEY TO BE NOTICED

Donald B. Zaycosky (See above for address) ATTORNEY TO BE NOTICED

Defendant
Calvin Price Superintendent of the Conway Human Development Center, in his official capacity only

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 5 of 24

Cordelia M. Elias (See above for address) ATTORNEY TO BE NOTICED
Donald B. Zaycosky (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/16/2009 01/22/2009 02/03/2009 02/04/2009
02/17/2009 02/17/2009
02/19/2009 02/19/2009 02/19/2009 02/19/2009 02/19/2009 03/30/2009
03/30/2009
05/11/2009
05/21/2009
06/04/2009

# Docket Text
1 COMPLAINT against all defendants, filed by USA, summons issued and returned to counsel for plaintiff (filing fee waived) (jap) (Entered: 01/20/2009)
Summons Reissued as to Arkansas, State of c/o Governor Beebe. (kjp) (Entered: 01/22/2009)
2 SUMMONS Returned Executed by USA. State of Arkansas served on 1/30/2009. (mkf) (Entered: 02/03/2009)
3 NOTICE of Appearance by Lori Freno−Engman on behalf of Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price (Freno−Engman, Lori) (Entered: 02/04/2009)
4 ANSWER to 1 Complaint by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price.(Freno−Engman, Lori) (Entered: 02/17/2009)
5 INITIAL SCHEDULING ORDER (DOC): Rule 26(f) Conference to occur by 4/27/2009; Rule 26(f) Report due by 5/11/2009; Bench Trial set for 4/6/2010 at 9:00 AM in Little Rock Courtroom #4C before Judge William R. Wilson Jr. (maj) (Entered: 02/17/2009)
6 SUMMONS Returned Executed by USA. Mike Beebe served on 1/25/2009. (vjt) (Entered: 02/19/2009)
7 SUMMONS Returned Executed by USA. James C Green served on 1/29/2009. (vjt) (Entered: 02/19/2009)
8 SUMMONS Returned Executed by USA. Calvin Price served on 1/28/2009. (vjt) (Entered: 02/19/2009)
9 SUMMONS Returned Executed by USA. John M Selig served on 1/29/2009. (vjt) (Entered: 02/19/2009)
10 Summons Returned Unexecuted by USA as to Arkansas, State of. (vjt) (Entered: 02/19/2009)
11 NOTICE of Appearance by Thomas B. York on behalf of Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price (York, Thomas) (Entered: 03/30/2009)
12 NOTICE of Appearance by Donald B. Zaycosky on behalf of Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price (Zaycosky, Donald) (Entered: 03/30/2009)
13 REPORT of Rule 26(f) Planning Meeting by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price. Parties' Rule 26 (f) Discovery Plan (Attachments: # 1 Exhibit Attachment A)(York, Thomas) (Entered: 05/11/2009)
14 FINAL SCHEDULING ORDER (DOC): Bench Trial set for 4/6/2010 at 9:30 AM in Little Rock Courtroom #4C before Judge William R. Wilson Jr; Discovery due by 2/12/2010; Motions due by 2/5/2010; Pretrial Disclosure Sheet due by 3/8/2010. (maj) (Entered: 05/21/2009)
15 NOTICE by USA First Entry Onto Land (Cheng, Christopher) (Entered: 06/04/2009)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 6 of 24

06/05/2009 07/02/2009 07/02/2009 07/10/2009 08/20/2009 10/09/2009 10/21/2009
11/13/2009 11/16/2009 11/25/2009 11/25/2009
11/25/2009 11/25/2009
11/30/2009 11/30/2009

16 CERTIFICATE OF SERVICE by USA re 15 Notice (Other) (substitute certificate of service) (Cheng, Christopher) (Entered: 06/05/2009)
17 NOTICE of Appearance by Laura L. Coon on behalf of USA (jap) (Entered: 07/06/2009)
18 NOTICE of Appearance by Vincent P. Herman on behalf of USA (jap) (Entered: 07/06/2009)
19 STIPULATION For Protective Order by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price. (York, Thomas) (Entered: 07/10/2009)
20 ORDER REASSIGNING CASE to Chief Judge J. Leon Holmes for all further proceedings. Signed by Judge William R. Wilson Jr. on 8/20/09. (bfw) (Entered: 08/20/2009)
22 Unopposed MOTION to Extend Time in Scheduling Order by USA (Dean, Kerry) (Entered: 10/09/2009)
23 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: TELEPHONE CONFERENCE held on Wednesday, 10/21/2009 re 22 Unopposed MOTION to Extend Time in Scheduling Order filed by USA; Benjamin Taylor, Christopher Cheng, Laura Coon present for plaintiff; Thomas York, Lori Freno present for defendant; Court informs parties trial will be reset for fall, 2010; parties to confer and submit proposed scheduling order to Court. (Court Reporter K. Baker) (cdw) (Entered: 10/21/2009)
24 AMENDED DOCUMENT by USA. Amendment to 14 Scheduling Order, Set Scheduling Order Deadlines (Parties Joint Submission of Proposed Revised Scheduling Order) (Attachments: # 1 Document Proposed Order)(Cheng, Christopher) (Entered: 11/13/2009)
25 AMENDED FINAL SCHEDULING ORDER (DOC): Bench Trial reset for the week of 9/8/2010 at 9:15 AM in Little Rock, Courtroom #4D before Chief Judge J. Leon Holmes; Discovery due by 6/8/2010; Pretrial Disclosure Sheet due by 7/30/2010; Status Report due by 7/12/2010. (cdw) (Entered: 11/16/2009)
27 First MOTION to Compel Entry Upon Land by USA (Dean, Kerry) (Entered: 11/25/2009)
28 BRIEF IN SUPPORT filed by USA re 27 Motion to Compel Entry Upon Land (Attachments: # 1 Exhibit 1 − 6−30−09 Letter from C.Cheng, # 2 Exhibit 2 − Crawford Report, # 3 Exhibit 3 − 10−20−09 email from T.York, # 4 Exhibit 4 − 11−2−09 email from T.York, # 5 Exhibit 5 − 11−4−09 email from C.Cheng, # 6 Exhibit 6 − 11−6−09 Letter from B.Tayloe, # 7 Exhibit 7 − 11−12−09 email from T.York, # 8 Exhibit 8 − 11−16−09 email from C.Cheng, # 9 Exhibit 9 − 11−17−09 email from T.York, # 10 Exhibit 10 − 11−17−09 email from K.Dean, # 11 Exhibit 11 − Notice of Entry Upon Land, # 12 Exhibit 12 − Objections to Notice of Entry, # 13 Exhibit 13 − 10−26−09 email from T.York)(Dean, Kerry) (Entered: 11/25/2009)
29 First MOTION to Compel Production of Documents by USA (Dean, Kerry) (Entered: 11/25/2009)
30 BRIEF IN SUPPORT filed by USA re 29 Motion to Compel Production of Documents (Attachments: # 1 Exhibit A − U.S. 3d Request for Production of Documents, # 2 Exhibit B − Defendants' Response to 3d Request for Production, # 3 Exhibit C −10−15−09 Letter from T.York, # 4 Exhibit D − 11−3−09 Letter from B.Tayloe)(Dean, Kerry) (Entered: 11/25/2009)
31 ORDER REFERRING MOTIONS to Compel 27 29 to Magistrate Judge Henry L. Jones, Jr., for disposition. Signed by Chief Judge J. Leon Holmes on 11/30/09. (vjt) (Entered: 11/30/2009)
33 ORDER directing defts to file no later than December 2, 2009, responses to 29 First MOTION to Compel Production of Documents and 27 First MOTION to Compel Entry Upon Land. Signed by Magistrate Judge Henry L. Jones, Jr on 11/30/09. (bkp) (Entered: 11/30/2009)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 7 of 24

12/02/2009 12/02/2009 12/07/2009 12/07/2009 12/08/2009 03/09/2010 03/09/2010
03/09/2010 03/10/2010 03/10/2010 03/11/2010 03/23/2010

35 RESPONSE in Opposition re 27 First MOTION to Compel Entry Upon Land Defendants' Brief In Opposition To The United States' Motion To Compel Entry Upon Land filed by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(York, Thomas) (Entered: 12/02/2009)
36 RESPONSE in Opposition re 29 First MOTION to Compel Production of Documents filed by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price. (Attachments: # 1 Exhibit A)(York, Thomas) (Additional attachment added on 12/7/2009: # 2 defendant's Exhibit B) (bfw). (entry modified to add Exhibit B at the direction of chambers) (Entered: 12/02/2009)
37 NOTICE OF DOCKET CORRECTION re 36 Response in Opposition to Motion: (entry modified to add Exhibit B as an attachment at the direction of chambers) (copy of Exhibit B attached hereto for service on parties) (bfw) (Entered: 12/07/2009)
39 ORDER denying 27 pltf's Motion to Compel entry upon land; denying 29 pltf's Motion to Compel State of Arkansas to adequately respond to the United States' discovery requests without prejudice as moot. Signed by Magistrate Judge Henry L. Jones, Jr on 12/7/09. (tjj) (Entered: 12/07/2009)
41 NOTICE of Appearance by Nicholas M. May on behalf of USA. (vjt) (Entered: 12/09/2009)
42 MOTION for Preliminary Injunction by USA (Dean, Kerry) (Entered: 03/09/2010)
43 BRIEF IN SUPPORT filed by USA re 42 Motion for Preliminary Injunction (Attachments: # 1 Exhibit List of Complete Exhibits to PI, # 2 Exhibit 1 − Findings Letter, # 3 Exhibit 3 − Richardson Declaration, # 4 Exhibit 3.A − Richardson Report, # 5 Exhibit 4 − Green Dep, # 6 Exhibit 7 − Mikkelsen Declaration, # 7 Exhibit 7.A.1 − Mikkelsen Report, # 8 Exhibit 7.A.2 − Mikkelsen Report, # 9 Exhibit 7.A.3 − Mikkelsen Report, # 10 Exhibit 7.A.4 − Mikkelsen Report, # 11 Exhibit 8 − Gettings Declaration, # 12 Exhibit 8.A − Gettings Report, # 13 Exhibit 8.B − Residential Services 2008, # 14 Exhibit 8.D − Case for Inclusion, # 15 Exhibit 8.E − Choices in Living, # 16 Exhibit 8.F − Status of Olmstead Plan, # 17 Exhibit 8.G − HCBS Waiver App, # 18 Exhibit 8.C.1 − Residential Services 2007, # 19 Exhibit 8.C.2 − Residential Services 2007, # 20 Exhibit 9 − Thibadeau Declaration, # 21 Exhibit 9.A − Thibadeau Report, # 22 Exhibit 9.B − Thibadeau CV, # 23 Exhibit 10 − Hill Dep, # 24 Exhibit 11 − Millum Dep, # 25 Exhibit 12.1 − Olmstead Plan, # 26 Exhibit 12.2 − Olmstead Plan, # 27 Exhibit 13 − Higgs Dep, # 28 Exhibit 14 − Cromer Dep, # 29 Exhibit 15 − Lee Dep, # 30 Exhibit 16 − Lee Email and Attachment, # 31 Exhibit 17 − Harris Email and Attachment, # 32 Exhibit 18 − Mercer Email, # 33 Exhibit 20 − Response to RFP, # 34 Exhibit 22 − Holloway Declaration, # 35 Exhibit 22.A − Holloway Report, # 36 Exhibit 24 − Callahan Dep, # 37 Exhibit 25 − Thomas Dep, # 38 Exhibit 26 − Matson Declaration, # 39 Exhibit 26.A − Matson Report, # 40 Exhibit 26.B − Matson CV, # 41 Exhibit 27 − Manikam Declaration, # 42 Exhibit 27.A − Manikam Report, # 43 Exhibit 27.B − Manikam CV, # 44 Exhibit 34 − Psychology Services Meeting, # 45 Exhibit 41 − DDS Mission Statement, # 46 Exhibit 42 − Reddig Email, # 47 Exhibit 43 − Reddig Dep)(Dean, Kerry) (Entered: 03/09/2010)
44 MOTION to Seal Document Exhibits to Memo in Support of PI by USA (Dean, Kerry) (Entered: 03/09/2010)
45 ORDER granting USA's 44 Motion to File Documents Under Seal; the referenced exhibits to 43 USA's Memorandum of Points and Authorities in Support of their 42 MOTION for Preliminary Injunction shall be FILED UNDER SEAL. Signed by Chief Judge J. Leon Holmes on 3/10/10. (vjt) (Entered: 03/10/2010)
47 SEALED DOCUMENT (jap) (Entered: 03/10/2010)
48 ADDENDUM filed by USA to 43 Brief in Support. (Attachments: # 1 Document)(Cheng, Christopher) (Entered: 03/11/2010)
49 MOTION to Strike 42 MOTION for Preliminary Injunction or in the Alternative, Defendants' Motion for Enlargement of Time to Respond to Plaintiff's Motion for

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 8 of 24

03/23/2010
03/24/2010 03/29/2010
04/07/2010 04/22/2010
05/05/2010 05/05/2010 05/19/2010 05/19/2010 05/24/2010 05/27/2010 05/27/2010

Preliminary Injunction by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 03/23/2010)
50 RESPONSE in Opposition re 42 MOTION for Preliminary Injunction and BRIEF in Support of Defendants' 49 Motion to Strike Plaintiff's Motion for Preliminary Injunction, or in the Alternative, Defendants' Motion for Enlargement of Time to Respond to Plaintiff's Motion for Preliminary Injunction and Defendants Initial Response to Plaintiff's Motion for Preliminary Injunction, filed by Arkansas, State of, Mike Beebe, John M Selig, James C Green, Calvin Price. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(York, Thomas) )Docket text was modified on 3/24/2010 to indicate the correct description of the document filed and to create linkage to 49 Motion to Strike. (mkf) (Entered: 03/23/2010)
NOTICE OF DOCKET CORRECTION re 50 Response in Opposition to Motion. CORRECTION: The docket text was modified on 3/24/2010 to indicate the correct description of the document filed and to create linkage for the Brief to docket entry 49 Motion to Strike. (mkf) (Entered: 03/24/2010)
51 RESPONSE in Opposition re 49 MOTION to Strike 42 MOTION for Preliminary Injunction or in the Alternative, Defendants' Motion for Enlargement of Time to Respond to Plaintiff's Motion for Preliminary Injunction MOTION to Strike 42 MOTION for Preliminary Injunction or in the Alternative, Defendants' Motion for Enlargement of Time to Respond to Plaintiff's Motion for Preliminary Injunction filed by USA. (Attachments: # 1 Exhibit Att A − Email from KDean, # 2 Exhibit Att B − Letter from BTayloe)(Dean, Kerry) (Entered: 03/29/2010)
52 OPINION AND ORDER that USA's 42 Motion for Preliminary Injunction is DENIED; Defts' 49 Motion to Strike is DENIED AS MOOT. Signed by Chief Judge J. Leon Holmes on 4/7/10. (vjt) (Entered: 04/07/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) DOCKET NOTE: This civil action is assigned to the docket of United States District Chief Judge J. Leon Holmes. Magistrate Judge Jerome T. Kearney is now associated to this case due to the retirement of Magistrate Judge Henry L. Jones. Signed by James W. McCormack, Clerk of Court on 4/22/10. (bfw) (Entered: 04/22/2010)
55 First MOTION to Dismiss Count II Without Prejudice by USA (Dean, Kerry) (Entered: 05/05/2010)
56 BRIEF IN SUPPORT filed by USA re 55 Motion to Dismiss Count II Without Prejudice (Dean, Kerry) (Entered: 05/05/2010)
57 RESPONSE in Opposition re 55 First MOTION to Dismiss Count II Without Prejudice filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(York, Thomas) (Additional attachment(s) added on 5/19/2010: ) # 3 Main Document − Correct) (thd). (Entered: 05/19/2010)
58 NOTICE OF DOCKET CORRECTION re: 57 Response in Opposition to Motion. CORRECTION: The original main document was submitted in error (wrong image file); the correct main document was added as an attachment to docket entry 57 , based on the attached request. (thd) (Entered: 05/19/2010)
59 REPLY to Response to Motion re 55 First MOTION to Dismiss Count II Without Prejudice filed by USA. (Dean, Kerry) (Entered: 05/24/2010)
60 ORDER denying 55 Motion to Dismiss Count 2 of the complaint. Signed by Chief Judge J. Leon Holmes on 5/27/10. (bkp) (Entered: 05/27/2010)
62 ORDER deferring to Chief Judge Holmes for a determination of whether the statewide ADA action should be reassigned to his docket as a related case to the CHDC action or otherwise. Signed by Judge Susan Webber Wright on 5/27/10. (bkp) (Entered: 05/27/2010)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 9 of 24

05/27/2010 06/08/2010
06/08/2010
06/17/2010 06/21/2010
06/28/2010
06/30/2010 06/30/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010
07/01/2010
07/01/2010 07/01/2010 07/01/2010

64 ORDER directing the Clerk to reassign Case No. 4:10cv00327 to this Court. Signed by Chief Judge J. Leon Holmes on 5/27/10. (bkp) (Entered: 05/28/2010)
66 MOTION to Compel the Plaintiff to Comply with Discovery by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(York, Thomas) (Entered: 06/08/2010)
67 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 66 Motion to Compel, Memorandum of Law in Support of Defendants' Motion to Compel the Plaintiff to Comply with Discovery (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(York, Thomas) (Entered: 06/08/2010)
68 NOTICE by USA of Withdrawal of Counsel S. Cutlar (and Substitution by J. Preston, appearing in official capacity) (Cheng, Christopher) (Entered: 06/17/2010)
69 RESPONSE in Opposition re 66 MOTION to Compel the Plaintiff to Comply with Discovery filed by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Cheng, Christopher) (Entered: 06/21/2010)
70 REPLY to Response to Motion re 66 MOTION to Compel the Plaintiff to Comply with Discovery filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(York, Thomas) (Entered: 06/28/2010)
71 RESPONSE to Subpoena and MOTION to Submit Under Seal by Crossett School District (jap) (Entered: 06/30/2010)
72 ENTRY of Appearance and Request for Notice by Robert B. Gibson, III (jap) (Entered: 06/30/2010)
73 MOTION to file documents under seal by USA (tjj) (Entered: 07/01/2010)
74 MOTION for Partial Summary Judgment by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 07/01/2010)
75 STATEMENT OF FACTS (Local Rule 56.1) re 74 Motion for Partial Summary Judgment filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (York, Thomas) (Entered: 07/01/2010)
76 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 74 Motion for Partial Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B part 1, # 3 Exhibit B part 2, # 4 Exhibit B part 3, # 5 Exhibit B part 4, # 6 Exhibit C part 1, # 7 Exhibit C part 2, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I)(York, Thomas) (Entered: 07/01/2010)
77 First MOTION to Compel Production of Documents by USA (Attachments: # 1 Document Memorandum in Support, # 2 Affidavit Declaration, # 3 Document Certificate of Service, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G)(Cheng, Christopher) (Entered: 07/01/2010)
78 MOTION for Partial Summary Judgment by USA (Coon, Laura) (Entered: 07/01/2010)
79 MOTION for Partial Summary Judgment Statement of Undisputed Facts by USA (Coon, Laura) (Entered: 07/01/2010)
80 BRIEF IN SUPPORT filed by USA re 79 Motion for Partial Summary Judgment, 78 Motion for Partial Summary Judgment (Attachments: # 1 Document Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 10 of 24

07/02/2010
07/02/2010 07/02/2010
07/12/2010 07/13/2010 07/13/2010 07/15/2010
07/15/2010 07/15/2010 07/16/2010 07/19/2010 07/21/2010 07/22/2010 07/26/2010

21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30A, # 32 Exhibit 30B, # 33 Exhibit 30C, # 34 Exhibit 31, # 35 Exhibit 32A, # 36 Exhibit 32B, # 37 Exhibit 33, # 38 Exhibit 34, # 39 Exhibit 35, # 40 Exhibit 36)(Coon, Laura) (Entered: 07/01/2010)
81 ORDER granting 73 Plaintiff's Motion for Leave to File Documents Under Seal, directing that the specified exhibits to the Plaintiff's Memorandum of Points &Authorities in Support of its Motion for Partial Summary Judgment be filed under seal. Signed by Chief Judge J. Leon Holmes on 7/2/2010. (jct) (Entered: 07/02/2010)
85 SEALED DOCUMENT. (hph) (Additional attachment(s) added on 7/2/2010: ) (hph). (Entered: 07/02/2010)
83 ORDER granting in part and denying in part 71 Motion for Leave to File Documents under seal by the Crossett School District. It does not appear that the documents need to be filed with the Court at this time, &therefore the request is denied. The Court orders the parties to keep them confidential, &if the documents are filed with the Court at any time, they may be filed under seal. Signed by Chief Judge J. Leon Holmes on 7/2/2010. (jct) (Entered: 07/02/2010)
86 STATUS REPORT Parties Status Report Pursuant to the Court's Amended Final Scheduling Order (Docket 25) by USA. (Coles, Arethea) (Entered: 07/12/2010)
87 MOTION in Limine and to Strike Declarations of Plaintiff's Experts by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 07/13/2010)
88 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 87 Motion in Limine Memorandum of Law in Support of Defendants' Motion in Limine and to Strike Declarations of Plaintiff's Experts (York, Thomas) (Entered: 07/13/2010)
89 MOTION for Extension of Time to File Response/Reply as to 80 Brief in Support,,, 79 MOTION for Partial Summary Judgment Statement of Undisputed Facts, 78 MOTION for Partial Summary Judgment for the Parties to Respond to Motions for Partial Summary Judgment by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 07/15/2010)
90 MOTION for Order −−Request for Court to Tour Conway Human Development Center by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Freno−Engman, Lori) (Entered: 07/15/2010)
91 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 90 Motion for Order −−Request for Court to Tour Conway Human Development Center (Freno−Engman, Lori) (Entered: 07/15/2010)
92 ORDER granting 89 Motion for Extension of Time to File Response/Reply re 78 MOTION for Partial Summary Judgment, 79 MOTION for Partial Summary Judgment Statement of Undisputed Facts. Replies due by 7/27/2010. Signed by Chief Judge J. Leon Holmes on 7/16/10. (bkp) (Entered: 07/16/2010)
94 RESPONSE in Opposition re 77 First MOTION to Compel Production of Documents Defendants' Opposition to United States' Motion to Compel filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (York, Thomas) (Entered: 07/19/2010)
95 RESPONSE to Motion re 90 MOTION for Order −−Request for Court to Tour Conway Human Development Center filed by USA. (Attachments: # 1 Appendix A, # 2 Document Memo of Law)(Cheng, Christopher) (Entered: 07/21/2010)
96 RESPONSE in Opposition re 87 MOTION in Limine and to Strike Declarations of Plaintiff's Experts filed by USA. (Coon, Laura) (Entered: 07/22/2010)
97 RESPONSE in Support re 77 First MOTION to Compel Production of Documents filed by USA. (Attachments: # 1 Certificate of Service, # 2 Exhibit 1−6)(Cheng, Christopher) (Entered: 07/26/2010)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 11 of 24

07/26/2010 07/26/2010 07/27/2010
07/27/2010 07/27/2010 07/27/2010
07/27/2010
07/28/2010 07/28/2010 07/29/2010 07/29/2010 07/29/2010 07/29/2010 07/29/2010

98 MOTION for Leave to Submit Amici Curiarum Brief by Families and Friends of Care Facility Residents, Conway HDC Parent Association (jap) (Entered: 07/27/2010)
99 MEMORANDUM IN SUPPORT filed by Conway HDC Parent Association, Families and Friends of Care Facility Residents re 98 Motion for Leave to Submit Amici Curiarum Brief (jap) (Entered: 07/27/2010)
100 RESPONSE in Opposition re 74 MOTION for Partial Summary Judgment filed by USA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24)(Herman, Vincent) (Entered: 07/27/2010)
101 STATEMENT OF FACTS (Local Rule 56.1) re 100 Response in Opposition to Motion,, 75 Statement of Facts (Local Rule 56.1) Statement of Facts in Dispute filed by USA. (Herman, Vincent) (Entered: 07/27/2010)
102 MOTION for Leave to File to File Documents Under Seal by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 07/27/2010)
103 RESPONSE to Motion re 78 MOTION for Partial Summary Judgment Defendants' Response to united State's Motion for Partial Summary Judgment filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit J, # 4 Exhibit K, # 5 Exhibit L, # 6 Exhibit M, # 7 Exhibit N, # 8 Exhibit O, # 9 Exhibit P, # 10 Exhibit Q, # 11 Exhibit R, # 12 Exhibit S, # 13 Exhibit T, # 14 Exhibit U, # 15 Exhibit V, # 16 Exhibit X, # 17 Exhibit Y, # 18 Exhibit Z, # 19 Exhibit BB, # 20 Exhibit EE, # 21 Exhibit FF, # 22 Exhibit GG, # 23 Exhibit HH, # 24 Exhibit JJ, # 25 Exhibit KK)(York, Thomas) (Entered: 07/27/2010)
104 STATEMENT OF FACTS (Local Rule 56.1) re 79 Motion for Partial Summary Judgment Defendants' Response to Plaintiff's Statement of Undisputed Facts filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K, # 10 Exhibit L, # 11 Exhibit N, # 12 Exhibit O, # 13 Exhibit P, # 14 Exhibit Q, # 15 Exhibit S, # 16 Exhibit T, # 17 Exhibit W, # 18 Exhibit AA, # 19 Exhibit CC, # 20 Exhibit DD, # 21 Exhibit EE)(York, Thomas) (Entered: 07/27/2010)
105 REPLY to Response to Motion re 90 MOTION for Order −−Request for Court to Tour Conway Human Development Center filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (Freno−Engman, Lori) (Entered: 07/28/2010)
106 ORDER granting 102 Defendants' Motion to file documents under seal. Signed by Chief Judge J. Leon Holmes on 7/28/10. (hph) (Entered: 07/28/2010)
108 MOTION for Protective Order by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Freno−Engman, Lori) (Entered: 07/29/2010)
109 SEALED DOCUMENTS (kjp) (Entered: 07/29/2010)
110 SEALED DOCUMENTS (kjp) (Entered: 07/29/2010)
111 MOTION to Extend Time, MOTION for Extension of Time to File Defendants' Motion for Extension of Time to Submit Local Rule 26.2 Pretrial Disclosure Sheet () by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 07/29/2010)
112 REPLY to Response to Motion re 87 MOTION in Limine and to Strike Declarations of Plaintiff's Experts filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (York, Thomas) (Entered: 07/29/2010)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 12 of 24

07/30/2010 07/30/2010 07/30/2010
07/30/2010 08/03/2010 08/03/2010 08/03/2010 08/03/2010 08/09/2010 08/11/2010 08/11/2010
08/11/2010 08/12/2010 08/13/2010

113 PROTECTIVE ORDER. Signed by Chief Judge J. Leon Holmes on 7/30/10. (bkp) (Entered: 07/30/2010)
115 ORDER denying 74 Motion for Partial Summary Judgment; granting in part and denying in part 77 Motion to Compel; denying 78 Motion for Partial Summary Judgment; denying 87 Motion in Limine; denying 90 Motion for Order. Signed by Chief Judge J. Leon Holmes on 7/30/10. (bkp) (Entered: 07/30/2010)
116 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: TELEPHONE CONFERENCE held on Friday, 7/30/2010 re 77 First MOTION to Compel Production of Documents filed by USA; Christopher Cheng, Arethea Coles, Benjamin Tayloe present for plaintiff; Tom York, Lori Freno, Donald Zaycosky, Brandon Robinson present for defendants; Court takes up outstanding issues regarding motion; order to follow; Court addresses remaining discovery matters related to trial. (Court Reporter G. Power) (cdw) (Entered: 07/30/2010)
118 ORDER granting 111 Motion for Extension of Time to File pretrial disclosure sheets up to and including August 3,2010. Signed by Chief Judge J. Leon Holmes on 7/30/10. (bkp) (Entered: 07/30/2010)
120 MOTION in Limine Defendants' Motion in Limine to Exclude Expert "Lay Witnesses" by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 08/03/2010)
121 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 120 Motion in Limine Brief In Support of Defendants' Motion in Limine to Exclude Expert "Lay Witnesses" (York, Thomas) (Entered: 08/03/2010)
122 PRETRIAL DISCLOSURE SHEET Defendants' Rule 26(a)(3) Pretrial Disclosures by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (York, Thomas) (Entered: 08/03/2010)
123 Exhibit List (purs. to FRCvP 26(a)(3)(A)(iii)) Pretrial Disclosure Sheet by USA. (Attachments: # 1 Document Witness List, # 2 Document Exhibit List)(Coon, Laura) (Entered: 08/03/2010)
124 RESPONSE to Motion re 98 MOTION for Leave to File Amici Curiarum Brief filed by USA. (Cheng, Christopher) (Entered: 08/09/2010)
125 MOTION to Compel Plaintiff's Response to Defendants' Pending Motion in Limine or, in the Alternative, for an Order Granting Defendants' Motion in Limine as Unopposed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 08/11/2010)
126 TRANSCRIPT of Telephone Conference Proceedings held on July 30, 2010, before Judge J. Leon Holmes. Court Reporter Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 8/23/2010. Redaction Request due 9/1/2010. Redacted Transcript Deadline set for 9/13/2010. Release of Transcript Restriction set for 11/9/2010. (plm) (Entered: 08/11/2010)
127 RESPONSE in Opposition re 125 MOTION to Compel Plaintiff's Response to Defendants' Pending Motion in Limine or, in the Alternative, for an Order Granting Defendants' Motion in Limine as Unopposed filed by USA. (Coon, Laura) (Entered: 08/11/2010)
128 REPLY to Response to Motion re 125 MOTION to Compel Plaintiff's Response to Defendants' Pending Motion in Limine or, in the Alternative, for an Order Granting Defendants' Motion in Limine as Unopposed filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (York, Thomas) (Entered: 08/12/2010)
129 MOTION to Quash Subpoenas of Marcia Harding and Janet Estes by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Attachments: #

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 13 of 24

08/13/2010 08/13/2010 08/13/2010 08/13/2010 08/16/2010 08/16/2010 08/19/2010
08/20/2010 08/23/2010 08/23/2010 08/23/2010 08/25/2010
08/25/2010 08/25/2010 08/26/2010 08/26/2010

1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(York, Thomas) (Entered: 08/13/2010)
130 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 129 Motion to Quash Memorandum in Support of Motion to Quash Subpoena of Marcia Harding and Janet Estes (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(York, Thomas) (Entered: 08/13/2010)
131 DOCUMENT FILED IN ERROR − DISREGARD (see docket entry 133 ). (York, Thomas) (Docket text modified on 8/16/2010 to indicate the document was filed in error.) (thd) (Entered: 08/13/2010)
132 OBJECTIONS by USA re 122 Pretrial Disclosure Sheet. (Coon, Laura) (Entered: 08/13/2010)
133 OBJECTIONS by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 123 Exhibit List (purs.to FRCvP 26(a)(3)(A)(iii)), 131 Objection. (York, Thomas) (Entered: 08/13/2010)
134 NOTICE OF DOCKET CORRECTION re 131 Objection re Exhibit List. CORRECTION: The docket text was modified to indicate the document was filed in error, based on the attached correspondence (the party re−filed the document as docket entry 133 ). (thd) (Entered: 08/16/2010)
136 ORDER granting 98 Motion for Leave to File an Amicus Curiae Brief; the amicus curiae brief must be filed on or before 8/30/10; reply, if any, is due on or before 9/1/10. Signed by Chief Judge J. Leon Holmes on 8/16/10. (vjt) (Entered: 08/16/2010)
138 RESPONSE in Opposition re 129 MOTION to Quash Subpoenas of Marcia Harding and Janet Estes filed by USA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Coon, Laura) (Entered: 08/19/2010)
139 RESPONSE in Opposition re 120 MOTION in Limine Defendants' Motion in Limine to Exclude Expert "Lay Witnesses" filed by USA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Coon, Laura) (Entered: 08/20/2010)
140 ORDER denying as moot defts' 66 Motion to Compel. Signed by Chief Judge J. Leon Holmes on 8/23/10. (vjt) (Entered: 08/23/2010)
141 ORDER denying defts' 129 Motion to Quash the Subpoenas of Marcia Harding and Janet Estes; Janet Estes and Marcia Harding are directed to provide the documents requested in those subpoenas by 5:00 p.m. CDT on August 26, 2010. Signed by Chief Judge J. Leon Holmes on 8/23/10. (vjt) (Entered: 08/23/2010)
143 NOTICE of Appearance by Matthew J. Donnelly on behalf of USA (Donnelly, Matthew) (Entered: 08/23/2010)
144 REPLY to Response to Motion re 120 MOTION in Limine Defendants' Motion in Limine to Exclude Expert "Lay Witnesses" Defendants' Reply to United States' Response in Opposition to Defendants' Motion in Limine to Exclude Expert "Lay Witnesses" filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(York, Thomas) (Entered: 08/25/2010)
145 MOTION in Limine to Exclude Legal Opinions by Defendants Experts by USA (Coon, Laura) (Entered: 08/25/2010)
146 BRIEF IN SUPPORT filed by USA re 145 Motion in Limine to Exclude Legal Opinions by Defendants Experts (Coon, Laura) (Entered: 08/25/2010)
147 ORDER granting defts' 120 Motion in Limine to exclude expert "lay witnessess; denying as moot defts' 125 Motion to Compel a response. Signed by Chief Judge J. Leon Holmes on 8/26/10. (vjt) (Entered: 08/26/2010)
148 ORDER denying pltf's 145 Motion in Limine to exclude legal opinions by defts' experts. Signed by Chief Judge J. Leon Holmes on 8/26/10. (vjt) (Entered:

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 14 of 24

08/27/2010
09/01/2010 09/02/2010 09/07/2010 09/07/2010 09/08/2010
09/09/2010 09/10/2010 09/13/2010 09/14/2010 09/15/2010 09/16/2010 09/17/2010

08/26/2010)
150 BRIEF filed by Families and Friends of Care Facility Residents Amici Curiae Brief (Attachments: # 1 Document Exhibit list, # 2 Exhibit Declaration of Jan Fortney, # 3 Exhibit FF/CFR Statement of Support, # 4 Exhibit Articles of Incorporation for AHDCR, # 5 Exhibit Articles of Amendment for AHDCR, # 6 Exhibit Articles of Amendment for FF/CFR, # 7 Exhibit Officers and members of the Board of Directors of FF/CFR, # 8 Exhibit Declaration of Larry Taylor, # 9 Exhibit Declaration of Rita Hoover, # 10 Exhibit Examples of services at CHDC, # 11 Exhibit Historical, chronological record of CHDC history, # 12 Exhibit Handwritten summary explaining "the therapeutic pool" by Shelly Travis, # 13 Exhibit CHDC Brochure, # 14 Exhibit CHDC Satisfaction Survey)(Sherman, William) (Entered: 08/27/2010)
151 RESPONSE re 150 Brief by USA (Cuncannan, Jacqueline) (Entered: 09/01/2010)
152 ENTRY of Appearance by Cordelia Elias on behalf of Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (jap) (Entered: 09/03/2010)
153 REQUEST TO CORRECT STATUTORY TYPOGRAPHICAL ERRORS IN AMICI CURIAE BRIEF by Families and Friends of Care Facility Residents. (Sherman, William) (Entered: 09/07/2010)
154 OBJECTIONS by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 09/07/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 1) held on Wednesday, 9/8/2010; Benjamin Tayloe, Matthew Donnelly, Jacqueline Cuncannon, Laura Coon, Vincent Herman present for plaintiff; Thomas York, Donald Zaycosky, Cordelia Elias, Lori Freno present for defendants; opening statements by counsel; plaintiff's proof begins. (Court Reporter G. Power/J. Ammons) (cdw) (Entered: 09/09/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 2) held on Thursday, 9/9/2010; plaintiff's proof continues. (Court Reporter J. Ammons/G. Power) (cdw) (Entered: 09/10/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 3) held on Friday, 9/10/2010; plaintiff's proof continues. (Court Reporter G. Power/J. Ammons) (cdw) (Entered: 09/10/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 4) held on Monday, 9/13/2010; plaintiff's proof continues. (Court Reporter J. Ammons/G. Power) (cdw) (Entered: 09/14/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 5) held on Tuesday, 9/14/2010; plaintiff's proof continues. (Court Reporter J. Ammons/G. Power) (cdw) (Entered: 09/15/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 6) held on Wednesday, 9/15/2010; plaintiff's proof continues. (Court Reporter K. Baker/C. Newburg) (cdw) (Entered: 09/16/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 7) held on Thursday, 9/16/2010; plaintiff's proof continues. (Court Reporter C. Newburg/K. Baker) (cdw) (Entered: 09/17/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 8) held on Friday, 9/17/2010; plaintiff's proof continues. (Court Reporter K. Baker/C. Newburg) (cdw) (Entered: 09/17/2010)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 15 of 24

09/20/2010 09/21/2010 09/22/2010 09/23/2010 09/24/2010 09/27/2010 09/28/2010 09/29/2010 09/30/2010 10/01/2010 10/02/2010 10/04/2010 10/05/2010

(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 9) held on Monday, 9/20/2010; plaintiff's proof continues. (Court Reporter C. Newburg/K. Baker) (cdw) (Entered: 09/21/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 10) held on Tuesday, 9/21/2010; plaintiff's proof continues. (Court Reporter C. Newburg/C. Nelson) (cdw) (Entered: 09/22/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 11) held on Wednesday, 9/22/2010; plaintiff's proof continues. (Court Reporter C. Nelson/E. Hinson) (cdw) (Entered: 09/23/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 12) held on Thursday, 9/23/2010; plaintiff's proof continues. (Court Reporter E. Hinson/C. Nelson) (cdw) (Entered: 09/24/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 13) held on Friday, 9/24/2010; plaintiff's proof continues. (Court Reporter C. Nelson/E. Hinson) (cdw) (Entered: 09/27/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 14) held on Monday, 9/27/2010; plaintiff rests with exception of Dr. Mikkelsen's testimony; defendants' proof begins. (Court Reporter G. Power/C. Nelson) (cdw) (Entered: 09/28/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 15) held on Tuesday, 9/28/2010; plaintiff's proof resumes; defendants' proof continues. (Court Reporter C. Newburg/J. Ammons) (cdw) (Entered: 09/29/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 16) held on Wednesday, 9/29/2010; plaintiff's proof concludes, plaintiff rests. (Court Reporter E. Hinson/C. Newburg) (cdw) (Entered: 09/30/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 17) held on Thursday, 9/30/2010; trial cancelled today due to attorney illness; resume at 8:30 a.m. on Friday. (Court Reporter E. Hinson) (cdw) (Entered: 09/30/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 18) held on Friday, 10/1/2010; defendants' proof resumes. (Court Reporter E. Hinson/C. Nelson) (cdw) (Entered: 10/02/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 19) held on Saturday, 10/2/2010; defendants' proof continues. (Court Reporter J. Ammons/E. Hinson) (cdw) (Entered: 10/04/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 20) held on Monday, 10/4/2010; Court tours Conway Human Development Center with counsel; defendants' proof continues. (Court Reporter E. Hinson/K. Baker) (cdw) (Entered: 10/05/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 21) held on Tuesday, 10/5/2010; defendants' proof

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 16 of 24

10/06/2010 10/07/2010 10/08/2010 10/09/2010 10/11/2010 10/12/2010 10/13/2010 10/14/2010 10/15/2010
10/19/2010
10/26/2010

continues. (Court Reporter C. Newburg/K. Baker/E. Hinson) (cdw) (Entered: 10/06/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 22) held on Wednesday, 10/6/2010; defendants' proof continues. (Court Reporter E. Hinson/K. Baker) (cdw) (Entered: 10/07/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 23) held on Thursday, 10/7/2010; defendants' proof continues. (Court Reporter J. Ammons/C. Nelson/G. Power) (cdw) (Entered: 10/08/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 24) held on Friday, 10/8/2010; defendants' proof continues. (Court Reporter J. Ammons/C. Nelson) (cdw) (Entered: 10/09/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 25) held on Saturday, 10/9/2010; defendants' proof continues. (Court Reporter K. Baker/C. Newburg) (cdw) (Entered: 10/12/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 26) held on Monday, 10/11/2010; defendants' proof continues. (Court Reporter C. Nelson/G. Power) (cdw) (Entered: 10/12/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 27) held on Tuesday, 10/12/2010; defendants' proof continues. (Court Reporter E. Hinson/G. Power) (cdw) (Entered: 10/13/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 28) held on Wednesday, 10/13/2010; defendants' proof continues. (Court Reporter G. Power/E. Hinson) (cdw) (Entered: 10/14/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 29) held on Thursday, 10/14/2010; defendants' proof continues. (Court Reporter E. Hinson/G. Power) (cdw) (Entered: 10/15/2010)
155 Minute entry for proceedings held before Chief Judge J. Leon Holmes: BENCH TRIAL (DAY 30) held on Friday, 10/15/2010; defendants' proof concludes, defendants rest; Court establishes briefing schedule for parties; Court adjourned. (Court Reporter E. Hinson) (Attachments: # 1 Plaintiff's Witness List, # 2 Defendants' Witness List, # 3 Plaintiff's Exhibit List, # 4 Defendants' Exhibit List) (cdw) (Entered: 10/18/2010)
156 TRANSCRIPT of Court Trial Proceedings held on September 8, 2010, before Judge J. Leon Holmes. Court Reporters Eugenie Power and Judith A. Ammons. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 10/29/2010. Redaction Request due 11/9/2010. Redacted Transcript Deadline set for 11/19/2010. Release of Transcript Restriction set for 1/18/2011. (plm) (Entered: 10/19/2010)
158 TRANSCRIPT of of Court Trial Proceedings − Volume 2 held on September 9, 2010, before Judge J. Leon Holmes. Court Reporters Judith A. Ammons and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 17 of 24

10/28/2010 11/01/2010 11/01/2010 11/03/2010 11/03/2010 11/04/2010 11/09/2010

Redaction due 11/5/2010. Redaction Request due 11/16/2010. Redacted Transcript Deadline set for 11/26/2010. Release of Transcript Restriction set for 1/24/2011. (plm) (Entered: 10/26/2010)
160 TRANSCRIPT of Court Trial Proceedings − Volume 3 held on September 10, 2010, before Judge J. Leon Holmes. Court Reporters Eugenie M. Power and Judith A. Ammons. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/8/2010. Redaction Request due 11/18/2010. Redacted Transcript Deadline set for 11/29/2010. Release of Transcript Restriction set for 1/26/2011. (plm) (Entered: 10/28/2010)
162 TRANSCRIPT of Court Trial − Volume 4 held on September 13, 2010 before the Honorable J. Leon Holmes. Court Reporters: Judith A. Ammons and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/12/2010. Redaction Request due 11/22/2010. Redacted Transcript Deadline set for 12/2/2010. Release of Transcript Restriction set for 1/31/2011. (dmn) (Entered: 11/01/2010)
164 TRANSCRIPT of Court Trial − Volume 5 held on September 14, 2010, before Judge Honorable J. Leon Holmes. Court Reporters: Judith A. Ammons and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/12/2010. Redaction Request due 11/22/2010. Redacted Transcript Deadline set for 12/2/2010. Release of Transcript Restriction set for 1/31/2011. (dmn) (Entered: 11/01/2010)
166 TRANSCRIPT of Court Trial Proceedings − Volume 6 held on September 15, 2010, before Judge J. Leon Holmes. Court Reporters Karen Baker and Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/15/2010. Redaction Request due 11/24/2010. Redacted Transcript Deadline set for 12/6/2010. Release of Transcript Restriction set for 2/1/2011. (plm) (Entered: 11/03/2010)
167 TRANSCRIPT of Court Trial Proceedings − Volume 7 held on September 16, 2010, before Judge J. Leon Holmes. Court Reporters Christa R. Newburg and Karen Baker. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/15/2010. Redaction Request due 11/24/2010. Redacted Transcript Deadline set for 12/6/2010. Release of Transcript Restriction set for 2/1/2011. (plm) (Entered: 11/03/2010)
169 TRANSCRIPT of Court Trial − Volume 8 held on September 17, 2010, before Judge J. Leon Holmes. Court Reporters: Karen Baker and Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/15/2010. Redaction Request due 11/26/2010. Redacted Transcript Deadline set for 12/6/2010. Release of Transcript Restriction set for 2/2/2011. (dmn) (Entered: 11/04/2010)
171 TRANSCRIPT of Court Trial Proceedings − Volume 9 held on September 20, 2010, before Judge J. Leon Holmes. Court Reporters Christa R. Newburg and

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 18 of 24

11/12/2010 11/12/2010 11/17/2010 11/17/2010 11/18/2010 12/01/2010 12/02/2010

Karen Baker. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/19/2010. Redaction Request due 11/30/2010. Redacted Transcript Deadline set for 12/10/2010. Release of Transcript Restriction set for 2/7/2011. (plm) (Entered: 11/09/2010)
173 TRANSCRIPT of Court Trial − Volume 10 held on September 21, 2010, before Judge J. Leon Holmes. Court Reporters: Christa R. Newburg and Cheryl Bartnett Nelson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/22/2010. Redaction Request due 12/3/2010. Redacted Transcript Deadline set for 12/13/2010. Release of Transcript Restriction set for 2/10/2011. (dmn) (Entered: 11/12/2010)
175 TRANSCRIPT of Court Trial − Volume 11 held on September 22, 2010, before Judge J. Leon Holmes. Court Reporters: Cheryl Bartnett Nelson and Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/22/2010. Redaction Request due 12/3/2010. Redacted Transcript Deadline set for 12/13/2010. Release of Transcript Restriction set for 2/10/2011. (dmn) (Entered: 11/12/2010)
177 TRANSCRIPT of Court Trial Proceedings − Volume 12 held on September 23, 2010, before Judge J. Leon Holmes. Court Reporters Elaine Hinson and Cheryl Bartnett Nelson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/29/2010. Redaction Request due 12/8/2010. Redacted Transcript Deadline set for 12/20/2010. Release of Transcript Restriction set for 2/15/2011. (plm) (Entered: 11/17/2010)
178 RESTRICTED TRANSCRIPT (Excerpt from Transcript of Court Trial − Volume 12 filed under seal per order of the Court held on September 23, 2010) (plm) (Entered: 11/17/2010)
180 TRANSCRIPT of Court Trial Proceedings − Volume 13 held on September 24, 2010, before Judge J. Leon Holmes. Court Reporters Cheryl Bartnett Nelson and Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 11/29/2010. Redaction Request due 12/9/2010. Redacted Transcript Deadline set for 12/20/2010. Release of Transcript Restriction set for 2/16/2011. (plm) (Entered: 11/18/2010)
182 TRANSCRIPT of Court Trial Proceedings − Volume 14 held on September 27, 2010, before Judge J. Leon Holmes. Court Reporters Eugenie M. Power and Cheryl Bartnett Nelson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/13/2010. Redaction Request due 12/22/2010. Redacted Transcript Deadline set for 1/3/2011. Release of Transcript Restriction set for 3/1/2011. (plm) (Entered: 12/01/2010)
183 TRANSCRIPT of Court Trial Proceedings − Volume 15 held on September 28, 2010, before Judge J. Leon Holmes. Court Reporters Christa R. Newburg and Judith A. Ammons. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 19 of 24

12/07/2010 12/07/2010 12/07/2010 12/07/2010 12/21/2010 12/22/2010

Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/13/2010. Redaction Request due 12/23/2010. Redacted Transcript Deadline set for 1/3/2011. Release of Transcript Restriction set for 3/2/2011. (plm) (Entered: 12/02/2010)
185 TRANSCRIPT of Court Trial Proceedings − Volume 16 held on September 29, 2010, before Judge J. Leon Holmes. Court Reporters Elaine Hinson and Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/17/2010. Redaction Request due 12/28/2010. Redacted Transcript Deadline set for 1/7/2011. Release of Transcript Restriction set for 3/7/2011. (plm) (Entered: 12/07/2010)
186 TRANSCRIPT of Court Trial Proceedings − Volume 17 held on September 30, 2010, before Judge J. Leon Holmes. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/17/2010. Redaction Request due 12/28/2010. Redacted Transcript Deadline set for 1/7/2011. Release of Transcript Restriction set for 3/7/2011. (plm) (Entered: 12/07/2010)
187 TRANSCRIPT of Court Trial Proceedings − Volume 18 held on October 1, 2010, before Judge J. Leon Holmes. Court Reporters Elaine Hinson and Cheryl Bartnett Nelson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/17/2010. Redaction Request due 12/28/2010. Redacted Transcript Deadline set for 1/7/2011. Release of Transcript Restriction set for 3/7/2011. (plm) (Entered: 12/07/2010)
188 TRANSCRIPT of Court Trial Proceedings − Volume 19 held on October 2, 2010, before Judge J. Leon Holmes. Court Reporters Judith A. Ammons and Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 12/17/2010. Redaction Request due 12/28/2010. Redacted Transcript Deadline set for 1/7/2011. Release of Transcript Restriction set for 3/7/2011. (plm) (Entered: 12/07/2010)
190 TRANSCRIPT of Court Trial Proceedings − Volume 20 held on October 4, 2010, before Judge J. Leon Holmes. Court Reporters: Elaine Hinson and Karen Baker. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/11/2011. Redacted Transcript Deadline set for 1/21/2011. Release of Transcript Restriction set for 3/21/2011. (dmn) (Entered: 12/21/2010)
192 TRANSCRIPT of Court Trial Proceedings − Volume 21 held on October 5, 2010, before Judge J. Leon Holmes. Court Reporters Christa R. Newburg, Karen Baker and Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/12/2011. Redacted Transcript Deadline set for 1/24/2011. Release of Transcript Restriction set for 3/22/2011. (plm) (Entered: 12/22/2010)

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12/22/2010 12/23/2010 12/23/2010 12/23/2010 12/23/2010 12/23/2010 12/23/2010 12/28/2010

194 First MOTION to Extend Time Motion for Confirmation of Post−Trial Briefing Schedule by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 12/22/2010)
195 TRANSCRIPT of Court Trial Proceedings − Volume 22 held on October 6, 2010, before Judge J. Leon Holmes. Court Reporters Elaine Hinson and Karen Baker. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/13/2011. Redacted Transcript Deadline set for 1/24/2011. Release of Transcript Restriction set for 3/23/2011. (plm) (Entered: 12/23/2010)
196 TRANSCRIPT of Court Trial Proceedings − Volume 23 held on October 7, 2010, before Judge J. Leon Holmes. Court Reporters Judith A. Ammons, Cheryl Bartnett Nelson and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/13/2011. Redacted Transcript Deadline set for 1/24/2011. Release of Transcript Restriction set for 3/23/2011. (plm) (Entered: 12/23/2010)
197 TRANSCRIPT of Court Trial Proceedings held on October 8, 2010, before Judge J. Leon Holmes. Court Reporters Judith A. Ammons, Cheryl Bartnett Nelson and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/13/2011. Redacted Transcript Deadline set for 1/24/2011. Release of Transcript Restriction set for 3/23/2011. (plm) (Entered: 12/23/2010)
198 TRANSCRIPT of Court Trial Proceedings − Volume 25 held on October 9, 2010, before Judge J. Leon Holmes. Court Reporters Karen Baker and Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/13/2011. Redacted Transcript Deadline set for 1/24/2011. Release of Transcript Restriction set for 3/23/2011. (plm) (Entered: 12/23/2010)
199 TRANSCRIPT of Court Trial Proceedings − Volume 26 held on October 11, 2010, before Judge J. Leon Holmes. Court Reporters Cheryl Bartnett Nelson and Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/3/2011. Redaction Request due 1/13/2011. Redacted Transcript Deadline set for 1/24/2011. Release of Transcript Restriction set for 3/23/2011. (plm) (Entered: 12/23/2010)
201 ORDER confirming that the initial post−trial briefs will be due 1/31/11, with reply briefs due 2/21/11. Signed by Chief Judge J. Leon Holmes on 12/23/10. (hph) (Entered: 12/23/2010)
203 TRANSCRIPT of Court Trial Proceedings − Volume 27 held on October 12, 2010, before Judge J. Leon Holmes. Court Reporters: Elaine Hinson and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/7/2011. Redaction Request due 1/18/2011. Redacted Transcript Deadline set for 1/28/2011. Release of Transcript Restriction set for 3/28/2011. (dmn) (Entered: 12/28/2010)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 21 of 24

12/29/2010
12/30/2010
12/30/2010
01/05/2011 01/06/2011 01/06/2011 01/22/2011 01/24/2011 02/08/2011 02/08/2011 02/10/2011 02/10/2011 02/24/2011 02/25/2011

205 TRANSCRIPT of Court Trial − Volume 28 held on 10/13/2010, before Chief Judge J. Leon Holmes. Court Reporters: Eugenie Power and Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/10/2011. Redaction Request due 1/19/2011. Redacted Transcript Deadline set for 1/31/2011. Release of Transcript Restriction set for 3/29/2011. (thd) (Entered: 12/29/2010)
207 TRANSCRIPT of Court Trial Proceedings − Volume 29 held on October 14, 2010, before Judge J. Leon Holmes. Court Reporters: Elaine Hinson and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/10/2011. Redaction Request due 1/20/2011. Redacted Transcript Deadline set for 1/31/2011. Release of Transcript Restriction set for 3/30/2011. (dmn) (Entered: 12/30/2010)
209 TRANSCRIPT of Court Trial Proceedings − Volume 30 held on October 15, 2010, before Judge J. Leon Holmes. Court Reporters: Elaine Hinson and Eugenie M. Power. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 1/10/2011. Redaction Request due 1/20/2011. Redacted Transcript Deadline set for 1/31/2011. Release of Transcript Restriction set for 3/30/2011. (dmn) (Entered: 12/30/2010)
211 MOTION to Withdraw as Attorney by USA (Cheng, Christopher) (Entered: 01/05/2011)
212 NOTICE of Appearance by Christopher N. Cheng on behalf of USA (Cheng, Christopher) (Entered: 01/06/2011)
213 ORDER granting 211 Motion for Shanetta Y. Cutlar, Nicholas May, and Arethea Coles to Withdraw as Attorney of Record for USA. Signed by Chief Judge J. Leon Holmes on 1/6/11. (vjt) (Entered: 01/06/2011)
214 MOTION to Extend Time Defendants' Unopposed Motion For Extension Of Time To Complete Post−Trial Briefs by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 01/22/2011)
215 ORDER granting defts' 214 Motion for Extension of Time to file post−trial briefs; initial post−trial briefs due 2/8/11; post−trial reply briefs due 3/1/11. Signed by Chief Judge J. Leon Holmes on 1/24/11. (vjt) (Entered: 01/25/2011)
216 MOTION to Extend Time Defendants' Unopposed Motion For Extension Of Time To Complete Post−Trial Briefs by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 02/08/2011)
217 ORDER granting defts' 216 Motion for Extension of Time to file post−trial briefs; initial post−trial briefs due 2/10/11, with post−trial reply briefs due on 3/3/11. Signed by Chief Judge J. Leon Holmes on 2/8/11. (vjt) (Entered: 02/08/2011)
218 TRIAL BRIEF by USA (Attachments: # 1 Appendix)(Cheng, Christopher) (Entered: 02/10/2011)
219 TRIAL BRIEF Defendants' Post−Trial Brief by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig(York, Thomas) (Entered: 02/10/2011)
220 MOTION for Extension of Time to File Response/Reply as to 218 Trial Brief by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 02/24/2011)
221 RESPONSE in Opposition re 220 MOTION for Extension of Time to File Response/Reply as to 218 Trial Brief filed by USA. (Attachments: # 1

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 22 of 24

02/28/2011 02/28/2011 03/17/2011 03/17/2011 03/30/2011 03/31/2011 06/08/2011
06/08/2011 06/15/2011 06/16/2011 07/22/2011 07/22/2011 07/25/2011
07/25/2011 07/29/2011

Exhibit)(Donnelly, Matthew) (Entered: 02/25/2011)
222 ORDER granting defts' 220 Motion for Extension of Time to File Reply to pltf's post−trial brief; defts' reply is due 3/17/11. Signed by Chief Judge J. Leon Holmes on 2/28/11. (vjt) (Entered: 02/28/2011)
223 AMENDED 222 ORDER granting 220 Motion for Extension of Time to File Reply; the parties have until 3/17/11 to file a reply to the post−trial briefs. Signed by Chief Judge J. Leon Holmes on 2/28/11. (vjt) (Entered: 03/01/2011)
224 RESPONSE re 219 Trial Brief of Defendants by USA (Donnelly, Matthew) (Entered: 03/17/2011)
225 TRIAL BRIEF Defendants' Response to Plaintiff's Post−Trial Brief by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Attachments: # 2 Appendix)(York, Thomas) (# 3 Exhibit A substituted per 227 Order on 3/31/2011.) (thd). (Entered: 03/17/2011)
226 MOTION for Order to Substitute Exhibit A of Defendants' Response to Plaintiff's Post−Trial Brief by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Attachments: # 1 Exhibit A)(York, Thomas) (Entered: 03/30/2011)
227 ORDER granting defts' 226 Motion to Substitute Exhibit A of defts' response to pltfs' post−trial brief; the Clerk is directed to substitute Exhibit A filed as Document #226−1 for Exhibit A filed as Document #225−1. Signed by Chief Judge J. Leon Holmes on 3/31/11. (vjt) (Entered: 03/31/2011)
228 FINDINGS OF FACT AND CONCLUSIONS OF LAW that Conway Human Development Center complies with all of the requirements of the Fourteenth Amendment and the Americans with Disabilities Act but not all of the requirements of the Individuals with Disabilities Education Act. Because Congress has provided for a state educational agency to enforce compliance with the Act, and because the evidence established that the state educational agency here is enforcing and will enforce compliance, no injunction is necessary or appropriate. A judgment dismissing this action with prejudice will be entered separately. Signed by Chief Judge J. Leon Holmes on 6/8/11. (vjt) (Entered: 06/08/2011)
229 JUDGMENT pursuant to 228 Findings of Fact and Conclusions of Law entered this date, judgment is hereby entered dismissing this action with prejudice. Signed by Chief Judge J. Leon Holmes on 6/8/11. (vjt) (Entered: 06/08/2011)
230 MOTION for Extension of Time to File a Motion for Fees an Costs by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 06/15/2011)
231 ORDER granting 230 Motion for Extension of Time to File a Motion for Fees and Costs; defts have up to and including 7/22/11 to file their motion. Signed by Chief Judge J. Leon Holmes on 6/16/11. (vjt) (Entered: 06/16/2011)
232 MOTION for Attorney Fees by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 07/22/2011)
233 BRIEF IN SUPPORT re 232 Motion for Attorney Fees filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. (York, Thomas) (Entered: 07/22/2011)
234 EXHIBITS: Appendices C1−C13, Attachments C1−C13, and Exhibits A−F to Defendants' Brief in Support of motion for an Award of Attorneys' Fees and Costs filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price re 233 Brief in Support. (Exhibits Attachments submitted conventionally and maintained in the Office of the Clerk of Court) (jap) (Entered: 07/26/2011)
EXHIBITS Appendix A (Attachment−1); Appendix B (Attachments B−1, B−2) filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig to 233 234 (jap) (Entered: 07/26/2011)
235 MOTION to Amend/Correct 233 Brief in Support, 232 MOTION for Attorney Fees, 234 Addendum, Addendum by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 23 of 24

08/01/2011 08/02/2011 08/03/2011 08/03/2011
08/04/2011 08/08/2011 08/12/2011 08/19/2011 09/30/2011 10/03/2011 11/01/2011
11/02/2011 11/09/2011 11/10/2011

Exhibit C)(York, Thomas) (Entered: 07/29/2011)
236 RESPONSE to Motion re 235 MOTION to Amend/Correct 233 Brief in Support, 232 MOTION for Attorney Fees, 234 Addendum, Addendum MOTION to Amend/Correct 233 Brief in Support, 232 MOTION for Attorney Fees, 234 Addendum, Addendum filed by USA. (Donnelly, Matthew) (Entered: 08/01/2011)
237 ORDER granting 235 Defendants' Motion for leave to file amended motion for award of attorney's fees and costs, memorandum of law and Appendix A. Signed by Chief Judge J. Leon Holmes on 8/2/2011. (kdr) (Entered: 08/02/2011)
238 MOTION to Amend/Correct 232 MOTION for Attorney Fees by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 08/03/2011)
239 AMENDED DOCUMENT by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. Amendment to 233 Brief in Support, 232 MOTION for Attorney Fees, Addendum, 238 MOTION to Amend/Correct 232 MOTION for Attorney Fees (Attachments: # 1 Appendix A)(York, Thomas) (Entered: 08/03/2011)
240 Unopposed MOTION for Extension of Time to File Response/Reply as to 238 MOTION to Amend/Correct 232 MOTION for Attorney Fees by USA (Donnelly, Matthew) (Entered: 08/04/2011)
241 ORDER granting pltf's 240 Motion for Extension of Time up to and including 10/11/11 to respond to defts' amended motion for an award of attorneys' fees and costs 232 238 . Signed by Chief Judge J. Leon Holmes on 8/8/11. (vjt) (Entered: 08/08/2011)
242 NOTICE of Appearance filed by Isaac R. Campbell on behalf of USA. (kjp) (Entered: 08/12/2011)
243 NOTICE of Appearance by Daniel Schwei on behalf of USA (jap) (Entered: 08/22/2011)
244 Unopposed MOTION for Extension of Time to File Response/Reply as to 232 MOTION for Attorney Fees, 238 MOTION to Amend/Correct 232 MOTION for Attorney Fees by USA (Schwei, Daniel) (Entered: 09/30/2011)
245 ORDER granting pltf's 244 Motion for Extension of Time up to and including 11/1/11 to respond to defts' Amended Motion for Attorneys' Fees and Costs. Signed by Chief Judge J. Leon Holmes on 10/3/11. (vjt) (Entered: 10/03/2011)
246 RESPONSE in Opposition re 232 MOTION for Attorney Fees filed by USA. (Attachments: # 1 Exhibit A − Attorney's Fees Reductions, # 2 Exhibit B − Fees Prior to Jan. 16, 2009, # 3 Exhibit C − Arkansas's Voluntary Exclusions, # 4 Exhibit D − Invoices and Payments Chart, # 5 Exhibit E − Inconsistent Expenses for Experts, # 6 Exhibit F − Attorney Travel Expenses, # 7 Exhibit G − Time Entries Involving Travel, # 8 Exhibit H − Time Entries Regarding the Post−Trial Briefs, # 9 Exhibit I − Time Related to Travel Planning, # 10 Exhibit J − Ministerial and Clerical Time Entries, # 11 Exhibit K − Expenses Reductions, # 12 Exhibit L − Costs Reductions, # 13 Exhibit M − York Legal Group Invoices, # 14 Exhibit N − Payments from Arkansas, # 15 Index of Exhibits)(Schwei, Daniel) (Entered: 11/01/2011)
247 EXHIBITS M &N (Volumes 1 through 3) filed by USA to 246 Response in Opposition to Motion. [Exhibits submitted for filing conventionally and maintained in the Clerk's Office file] (jap) (Entered: 11/03/2011)
248 Unopposed MOTION for Leave to File Reply to Plaintiff's Response in Opposition to Defendants' Motion for Attorneys' Fees and Costs by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 11/09/2011)
249 ORDER granting defts' 248 Motion for Leave to File a reply to pltf's response in opposition to the motion for attorneys' fees and costs; defts' reply is due on or before 12/12/11. Signed by Chief Judge J. Leon Holmes on 11/10/11. (vjt)

Case: 4:09-cv-33 As of:07/24/2012 11:53 AM CDT 24 of 24

12/12/2011 12/13/2011 01/06/2012
02/06/2012
02/10/2012 02/13/2012 02/27/2012

(Entered: 11/10/2011)
250 RESPONSE re 239 Amended Document, 247 Addendum Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Attorneys' Fees and Costs by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig (York, Thomas) (Entered: 12/12/2011)
EXHIBITS− 2 Volumes (G through U) filed by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig re 250 (submitted conventionally and maintained in the Clerk's Office files) (jap) (Entered: 12/14/2011)
251 NOTICE by USA re 246 Response in Opposition to Motion,,, (Attachments: # 1 Document Corrected United States' Opposition Brief, # 2 Exhibit A (Corrected Attorney's Fees Reductions), # 3 Exhibit E (Corrected Inconsistent Expenses for Experts), # 4 Exhibit F (Corrected Attorney Travel Expenses), # 5 Exhibit G (Corrected Time Entries Involving Travel), # 6 Exhibit H (Corrected Time Entries Regarding the Post Trial Briefs))(Schwei, Daniel) (Entered: 01/06/2012)
252 OPINION AND ORDER that defts' motion for award of attorneys' fees and costs 232 238 is GRANTED IN PART and DENIED IN PART; the motion for an award of attorneys' fees and litigation expenses is denied; defts are given leave to amend their motion for an award of costs by submitting an affidavit as directed within seven days from the entry of this Opinion and Order. Signed by Chief Judge J. Leon Holmes on 2/6/12. (vjt) (Entered: 02/06/2012)
253 AMENDED DOCUMENT by Arkansas, State of, Mike Beebe, James C Green, Calvin Price, John M Selig. Amendment to 239 Amended Document, Second Amended Declaration of Thomas B. York in Support of Motion for an Award of Attorneys' Fees and Costs (York, Thomas) (Entered: 02/10/2012)
254 JUDGMENT pursuant to the Opinion and Order 252 , and the Amended Declaration 253 , judgment is hereby entered in favor of defts and against the pltf in the amount of $150,580.00 as costs of the action. Signed by Chief Judge J. Leon Holmes on 2/13/12. (vjt) (Entered: 02/13/2012)
255 RECEIPT for Exhibits (cdw) (Entered: 02/27/2012)