IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

UNITED STATES OF AMERICA,

)

950 Pennsylvania Avenue, N.W.

)

Washington, D.C. 20530

)

)

Plaintiff,

)

)

vs.

) Civil Action No.

)

)

THE STATE OF MARYLAND

)

200 Saint Paul Place

)

Baltimore, Maryland 21202;

)

County of Residence:

)

Baltimore City;

)

)

ROBERT L. EHRLICH, JR., Governor ) COMPLAINT

of the State of Maryland

)

State House

)

Annapolis, Maryland 21401

)

County of Residence:

)

Anne Arundel;

)

)

THE MARYLAND DEPARTMENT OF

)

JUVENILE SERVICES

)

120 West Fayette Street

)

Baltimore, MD 21201

)

County of Residence:

)

Baltimore City;

)

)

KENNETH MONTAGUE, Secretary

)

120 West Fayette Street

)

Baltimore, MD 21201

)

County of Residence:

)

Baltimore City;

)

)

)

)

)

)

REGINALD GARNETT, Superintendent )

Cheltenham Youth Facility

)

11001 Frank Tippett Road

)

Cheltenham, Maryland 20623

)

County of Residence:

)

Prince George’s;

)

)

TOM BOWERS, Administrator

)

Charles H. Hickey, Jr. School

)

2400 Cub Hill Road

)

Baltimore, Maryland 21234

)

County of Residence: Baltimore, )

)

)

)

Defendants.

)

Plaintiff, the United States of America, by its undersigned attorneys, for its complaint alleges:
1. This action is brought by the Attorney General, on behalf of the United States, pursuant the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin the State of Maryland from depriving youth confined in the Cheltenham Youth Facility (“Cheltenham”) in Cheltenham, Maryland, and the Charles H. Hickey, Jr. School (“Hickey”) in Baltimore County, Maryland, of rights, privileges or immunities secured or protected by the Constitution and laws of the United States.

JURISDICTION, STANDING AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345.

2

3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141.
4. Venue in the District of Maryland is proper pursuant to 28 U.S.C. § 1391(b). All claims set forth in this complaint arose in this District.
DEFENDANTS 5. Defendant STATE OF MARYLAND ("State") is responsible for the administration of juvenile justice in the State, including the operation of certain secure juvenile facilities. This action concerns the administration of two secure juvenile facilities: Cheltenham and Hickey (collectively, “the facilities”). 6. Defendant Robert L. Ehrlich, Jr. is the Governor of Maryland, and in this capacity heads the executive branch of Maryland’s government. The Governor of Maryland, as chief of the executive branch, has the duty to ensure that the departments that compose the executive branch of Maryland government guarantee the federal constitutional and statutory rights of all of the citizens of Maryland, including the youth confined in the facilities. 7. Defendant Maryland Department of Juvenile Services (“DJS”) is a department of the executive branch of Maryland government and is the state agency responsible for the care and
3

custody of youth confined at the facilities by the Maryland juvenile courts.
8. Defendant Kenneth Montague is the Secretary of the Maryland Department of Juvenile Services and, in this capacity, exercises administrative control of, and responsibility for the facilities.
9. Defendant Tom Bowers is the Facility Administrator of the Charles H. Hickey, Jr. School and is responsible for the administration and day-to-day operations of Hickey.
10. Defendant Reginald Garnett is the Superintendent of Cheltenham Youth Facility and is responsible for the administration and day-to-day operations of Cheltenham.
11. The individual Defendants named in paragraphs 6-10 above are officers of the Executive Branch of the State of Maryland and are sued in their official capacities.
12. Defendants are legally responsible, in whole or in part, for the operation of and conditions at the facilities; for ensuring the safety and security of youth; for ensuring that youth are adequately protected from harm; for ensuring that youth receive appropriate treatment, rehabilitation, and education commensurate with their needs and abilities; for ensuring that youth are provided due process of law; for ensuring that youth receive adequate medical and mental health care; for ensuring
4

that youth are adequately protected from fire; and for ensuring that programs for youth are consistent with the Maryland Department of Juvenile Services’ mission to provide opportunities for the treatment and rehabilitation of youth.
13. All relevant acts or omissions described below have been undertaken by the State, a political subdivision of the State, or an official, employee, agent or person acting on behalf thereof.
FACTUAL ALLEGATIONS 14. Defendants are governmental authorities or agents thereof with responsibility for the administration of juvenile justice within the meaning of 42 U.S.C. § 14141. 15. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that the youth at the facilities are adequately protected from harm and from undue risk of harm from: staff abuse, youth-on-youth violence, self-harm, and abusive juvenile confinement practices. 16. Defendants have engaged, and continue to engage, in a pattern or practice of subjecting youth at the facilities to unreasonable isolation, inhumane conditions and failing to provide adequate due process. 17. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at the
5

facilities receive adequate mental health care and rehabilitative treatment.
18. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at the facilities receive adequate medical and dental care.
19. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that eligible youth with disabilities at the facilities receive adequate special education services.
20. Defendants receive federal financial assistance and, as such, are subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder.
21. The youth residing at the facilities include youth with mental illness, mental retardation, and other disabilities who fall within the meaning of “children with disabilities” as defined in the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 (a)(1) and "individual[s] with a disability" as defined in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(20).
22. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at the facilities are adequately protected from the risk of fire.
6

VIOLATIONS ALLEGED 23. Through the acts, practices, and omissions alleged in paragraphs 15-22, Defendants have engaged, and continue to engage, in a pattern or practice of depriving youth confined at the facilities of rights, privileges, or immunities secured by the Constitution of the United States, including the Eighth and Fourteenth Amendments, and in violation of 42 U.S.C. § 14141(a). 24. Through the acts, practices and omissions alleged in paragraphs 17 and 19-21, Defendants have engaged, and continue to engage in a pattern or practice of failing to comply with the Individuals with Disabilities Education Act, (“IDEA”) 20 U.S.C. § 1401 et seq., and the regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and violating 42 U.S.C. § 14141(a). 25. Through the acts and omissions alleged in paragraphs 17 and 19-21, Defendants have engaged, and continue to engage, in a pattern or practice of failing to comply with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and the regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and regulations and violating 42 U.S.C. § 14141(a). 26. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in
7

paragraphs 15-22 that deprive youth confined at the facilities of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States.
PRAYER FOR RELIEF 27. The Attorney General is authorized under 42 U.S.C. § 14141 to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, contractors and all those acting in concert or participation with them from continuing the acts, practices and omissions set forth in paragraphs 15-22, above, and to require Defendants to take such action as will provide legal and constitutional conditions of care to youth confined at the facilities and any other secure facility to which Defendants transfer youth confined at the facilities during the pendency of this action. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
8

Respectfully submitted,

/s/ Allen F. Loucks
ALLEN F. LOUCKS United States Attorney District of Maryland 36 S. Charles Street Fourth Floor Baltimore, MD 21201 (410) 209-4800

_/s_/__Br_a_dl_e_y_J_._S_c_hl_o_z_ma_n______ BRADLEY J. SCHLOZMAN Acting Assistant Attorney General Civil Rights Division
__/s_/__Sh_a_ne_t_ta__Y_. _C_ut_l_ar______ SHANETTA Y. CUTLAR Chief Special Litigation Section

/s/ Tarra Deshields
TARRA DESHIELDS Assistant United States Attorney United States Attorney’s Office 36 S. Charles Street Fourth Floor Baltimore, MD 21201 (410) 209-4800

/s/ Daniel H. Weiss
DANIEL H. WEISS Deputy Chief Special Litigation Section Bar Number 08096 JOSHUA DELANEY Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Daniel.Weiss@usdoj.gov Joshua.Delaney@usdoj.gov (202) 514-6253 (202) 514-0212(fax)

9

 
 Case 1:05-cv-01772-JFM Document 3 Filed 07/19/05 Page 1 of 2

u.s.DFISiTlERIDCTCOURT
1;16TfttCTSf HARYLANg

IN THE UNITED STATES DISTRICT ~

I q P ~ 0&

FOR THE DISTRICT OF MARYLAND

NORTHERN DIVISION

CLERK'SOffiCE AT BALTIMORE

UNITED STATES OF AMERICA,
Plaintiff, VB.

f Ci vil I~'
) } )
)

.D(~UTY

THE STATE OF MARYLAND, et al., Defendants

~

ORDER OF

CONDITIONAL

1 DISMISSAL

}

Plaintiff,

the United

State of Maryland, et al.,

States of America, and Defendants, have determined that the interests

the of all

concerned parties can best be served by entering into a Settlement

Agreement for the implementation of needed improvements in the

operation of the Cheltenham Youth Facility and the Charles H. Hickey

Jr. School, two juvenile justice facilities

operated by the Maryland

Department of Juvenile Services. In recognition of these interests

and to avoid adversarial litigation,

the parties have entered into a

Settlement Agreement, attached to their Joint Motion for Conditional

Dismissal,

to settle this matter and have moved this Court, pursuant

to Fed. R. Civ. P. 41(a) (2 and L.R. 111, to tl dismiss the complaint

upon the passage of three (3) years from the date of its filing or the

State's earlier substantial compliance with the terms of the

Case 1:05-cv-01772-JFM Document 3 Filed 07/19/05 Page 2 of 2

Settlement Agreement; (2) place the case on the Court's inactive

docket; and (3) retain jurisdiction

over the case until three (3)

years have passed or an earlier final dismissal is entered. The

parties acknowledge that their Settlement Agreement shall terminate

definitively

and unconditionally

no later than three (3) years from

its effective

date.

Having reviewed the joint motion and for good cause shown;

IT IS HEREBY ORDEREDthat this case shall be placed on this

Court's inactive docket; this case shall be dismissed upon the passage

of three (3) years from the date of its filing or~,the State's earlier substantial compliance with the terms of the Settlement Agreement; and

this Court will retain jurisdiction

over the case until three (3)

years have passed or an earlier final dismissal is entered.

DATED this L~'day of

20QS

ited States Oi rict
J. Frederick~.MOtz;:.

Judge

-2-

 
 caC•,ials1eM1<:0v5--0c1v7-7011-7J7F2M-JFMDocDuomceunml e1nJt·315

Filed 06/26/08 Page 1 of 2 Flind o~ri41200l! f'aq~ 1 ot 2

IN TRE UNITED STATES DISTRICT COOR'X POA. THE OXS'l~Rl:01' Of' MA.RYL.A.-m
lfORTflml\N DIVISION

' )

Ci'o"14 No. t:US-•CV·Ol"'r/2

)

)

'.'a,

)

)

)

9 GCOND HODIJl'l EO

)

ORD£R OP CONDi TtOtfl\L

) DISMISSAL

l

)
______,))

St -itO ol' H.uyltutd, il.l... i I l tl."lVt: u~L •Jtmttl~d th.ll Lha t.nleurat9 ot
~U o o~ Jcrtrndd patt.:lou con bout bt: aatvttd by oxtt!l lthniJ t..1e

tiervu~e. sn.i n;· 1 ~IT>lnn- ng thoo~ provtalonu of tl)t!' •lJl'tterrt:~ut. appl ~~anle t..o r.he Charl"~ l:i. IH.t::K•:y, J t , School ("Hickey") .and
tr.e Che~tenh-..~1 Yol.l'~h P.:\C'llltoy ("CYF" l. Th~ partie h\lVt: ..tl.o-o

htwu ~ntu.1.·ed .:. t,t.c a SEJc<>nd Arrtcnd.c:d SoLt ic.me.nt. Agrf!ement. .:1 t t actu::t.l

Case 1:05-cv-01772-JFM Document 15 Filed 06/26/08 Page 2 of 2
D10tn1••al. t , "t.t.le thiD lfi.'ltter •nd hove trDVed t:h18 C'curt ~o
tT :9 IIEFI·:BY OKI.IHHP.U thtlt· th•a G.:t&t' •hll l bll ~dllced \lfl: tllltl C'our• • tra t1v• 03:tct.l this t:.aDe eh~ll be d~oPt:Ua•ed en June 29.

d1111f18Dod .u t~"'lrt 1oa. t:.'.TBO tl

2 011.
F".l.L-.-f' .s.,..lil '"'ta:x .nl.~ed ;, ces n 1t1 i t J...:.d-;re

·~

 
 Case 1:05-cv-01772-JFM Document 19 Filed 06/30/09 Page 1 of 2
Case I:05.ov.Q1772·JFM Oocumenl 18·3 Filed lf2512009 Pogo 1 of 2
r iLED ' fRICTCOURT
IN THE UNITED STATE~~t~T COURT
FOR Tll~o~i:~t~I~sfafiLANO

liN tT&D STATES OF AMER f CA, Plaintiff,

'!Ct
1 ' civil No . I •rv 1 ' os-cv- 01172
)

)

vs .

I

TH~ S'fA't& OF l•lARYLAND, ot ol, ,,

I

I

THIRD MODIFI£0

I

ORD£1\ OF CONDitiONAL

Defendants.

I DISMISSAL

I

)

)

------------------------'I

Plaiat1ff , the Oniced Staces of America, and D~fer~~nta , the SI..Bt.e o! Matylnnd f"State" l, ct 31 . , hnve dete!'mlned t:hilt; th~ lnl.c.:.c!lt.a o( aJ.l conc:ernftd pa rtlea cen bosl be aarve.d by I!Xlcndlnq the duration of certaln provl.ulons of the Second AmQnded Setclement AgTeement ~c th~ B~ltirnore Clty Juvenile
Ju•L )cQ Conter , • f •c I I. I Ly op., rnod by Chll floryl and D~p-1r<ment or
Juvontlt": Servic~a~ Tn recoqnltlon ot lb~.so i.nt:e['est.a and to ~volcl ddver~n r1al 1iclgation , the part1~s h~V0 ente~ed i n~o a Thi~d Amende~ Set~lement ~qreement , attached t o thai ~ Joint Not.t on to A.Jn•Jnd t htt Second Mod U 16d Ordot oi Condi t.lonAJ llismia!'itl l, to settle this znatter and havo moved this CQlJrt to am~nd its SeCond t-lod1 fif"...,ri Or{ler o f Cond.ltional 0.!.-s.mi.ssal.

Case 1:05-cv-01772-JFM Document 19 Filed 06/30/09 Page 2 of 2 Coso 1~>c:v·OI772-JfM Documentl&-3 Fillld 0612et2009 PjQe 2 of 2 Havtng rev~eYed db~ Jo1nL Ho~ion and for good cause 2hown;
IT IS HLPEBY ORDE~ED th&l h1a caao ah•ll be pl•ced on thiO Court ' • tnacr.ive doc~• II 1.ht11 ceso 1hal1 bP dla.tnl•••d on June 29 ,
2011 or P.JirJ.iet .H th• S l a t e reac:h@s sub $tt!intl~l compliance '""ith t:he termo of triO Tnird Ant•nded Settlemen t AqreeMont.; and this
Cour t w111 rt!'t~Jln Jtahdie:nnn over the CIUA 1Jnt11 e.atflr June 29# 2011 or such e&rli~r ~lae as th- $tate a~hlev~ au~tAnciol complLAn~~ wlth ~he te~ of th~ Thlrd ~rded
S•t t lf'll'f"n:_ AQteem..Pr,t.
·~· 2009.
I t Jud.;e
-2-

 
 Case 1:05-cv-01772-JFM Document 21 Filed 08/19/10 Page 1 of 2
Case 1:05-cv-01772-JFM Document 20-1 Filed 08/17/10 Page 1 of 2

FiLEO."' .,,

IN

'r;~·§i

1~~Q- Nt'l\;~,Td ~ ED

IT
"'·
S

\
Ti

,\!(\ ·
., .• HD
TES DISTRICT

COURT

~OR THE DISTRI ~! ~f MARYLAND

lU\~ Rll%E fj ISION

"' .,
''.\. (

.. ,..
'

, ' '

1 1,c, E

\,.

'

' \, t.

UNITED STATES OF AMERICA. ·

'

)).. '·'

PlaintQ ff.

)

)

vs.

)

)

THE STATE OF MARYLAND, et . al.

)

)

Defendants.

)

)

)

)

_____________________________________

)
)

Civil No. 1:05-cv-01772
ORDER OF FINAL DISMISSAL

Plaintiff, the United States of America, and Defendants, the State of Maryland ("State " ), et al ., have determined that the State has fulfilled its obligations under the Third Amended Settlement Agreement at the Baltimore City Juvenile Justice Center, a facility operated by the Maryland Department of Juvenile Services, and has met the requirements for early termination of the agreement . Accordingly, the Parties have submitted a Joint Motion for Order of Final Dismissal. Having reviewed the Joint Motion and for good cause shown;
IT IS HEREBY ORDERED that this case shall be finally dismissed with prejudice.

Case 1:05-cv-01772-JFM Document 21 Filed 08/19/10 Page 2 of 2 Case 1:05-cv-01772-JFM Document 20-1 Filed 08/1 7/1 0 Page 2 of 2

, DATED this ~day of ~1J

2010 .

 
 -----~~----~.-.--~--~--------------------
Second Amended· Settlement Agreement Between the United States of America
and the State of Maryland Regarding Conditions at Three 

Juvenile Justice Facilities 

Originally Filed in Civil N! JFM 05 CV 1772 in the United States 
 District Court for the District of Maryland: 

June 30, 2005i As Amended: May 17, 2007 and June 23, 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 

I. INTRODUCTION 

A. On August 30, 2002, the United States notified State of Maryland officials of its intent to investigate conditions of confinement at the Cheltenham Youth Fac~lity ("Cheltenham") in Cheltenham, Maryland and the Charles H. Hickey, Jr. School ("Hickey") in Baltimore, Maryland, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 and the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141 ("Section 14141"). Following a written invitation on June 28, 2005 from then-Secretary of Juvenile Services Kenneth C. Montague, Jr., to investigate the Baltimore City Juvenile Justice Center ("BCJJC"), the United States similarly notified the State with respect to BCJJC on June 30, 2005.
B. Between April 28 and June 12, 2003, the United States toured Cheltenham and Hickey with consultants in the fields of juvenile justice, medical care, mental health care, education and sanitation. At the time of these tours and until April 1, 2004, Hickey was operated by a for-profit corporation. The United States conducted similar tours at BCJJC in September and October, 2005.
C. On April 9, 2004, the United States issued a findings letter pursuant to 42 U.S.C. § 1997 (a) (1), which concluded that certain conditions at Cheltenham and Hickey violated the constitutional and federal statutory rights of juveniles confined there. The United States recognizes that its letter notifying the State of Maryland of the results of its investigation focused, by virtue of statutory requirements, on conditions the United States believed to violate federal law and, therefore, did not discuss positive aspects of the State's facilities. On August 7, 2006, the United States issued a separate findings letter regarding BCJJC, which the United States recognizes is limited in the same way.
D. The State of Maryland does not admit that it has violated the federal rights of juveniles confined at Cheltenham or Hickey, but remains firmly committed to enhancing conditions at its residential facilities. The State denies that it has violated the federal rights of juveniles confined at BCJJC.
====================================================================
Page 1 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 

E. The parties to this Settlement Agreement ("Agreement") are the United States Department of Justice and the State of Maryland r the Maryland Department of Juvenile Services r a~d their successors r contractors and agents. While not named in this agreement r the parties recognize that the cooperation of the Maryland State Department of Education and other state agencies will be required to comply with this Agreement.
F. At the time of the execution of the original Settlement Agreement r the State of Maryland represented that it had already taken measures to implement many provisions of this Agreeme~tr most notably by dramatically reducing the population at Cheltenham and by assuming control of and investing resources at Hickey and by adding millions of dollars in budgetary resources for these facilities in State Fiscal Year 2006 r which began on July 1r 2005. The United States applauded the Staters efforts to address proactively the measures outlined in the Agreement r but contended that it had not yet had the opportunity to assess these efforts. With respect to BCJJC r the State had made significant changes at the facility since the time of the United States r tour r which the United States recognized in its Findings Letter.
G. The State cooperated and negotiated in good faith with the United States regarding its investigation of Cheltenham and HickeYr provided the United States and its consultants full access to the toured facilities and documents r and was receptive to the on-site recommendations of the Department of Justicers consultants. At BCJJC r the State similarly cooperated with the United States and in some cases made immediate corrections to address concerns raised on-site by the United States r consultants.
H. Since the date of the original Agreement r the Staters performapce thereunder has been subject to the monitoring
described in Section v. of the original and the Amended
Agreement. The Stater s ,overall compliance with the Amended Agreement with respect to Cheltenham and Hickey makes it appropriate to cease monitoring r and the Agreement with respect to those facilities is terminated in accordance with the terms of the original Agreement after June 29 r 2008.
==================--========================================
Page 2 of 19 
 June 29 r 2005 r as amended May 17 r 2007 and June 23 r 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 

/ I. The State has not yet demonstrated to the satisfaction of 'the Independent Monitors compliance in certain areas of the Amended Agreement with respect to BCJJC and, as a consequence, the parties have agreed to extend certain provisions of the Amended Agreement with respect to that facility until June 29, 2009.
J. In entering into this Agreement, the parties have given substantial consideration to its impact on public safety and the operation of the juvenile justice system in Maryland, and believe that this Agreement is narrowly drawn to provide the least intrusive means necessary to address the issues identified in the United States' investigation without adversely affecting the State's significant interest in protecting the safety of the citizens of Maryland through the use of secure juvenile facilities.
K. The United States agrees that once youth are admitted to State facilities, the State of Maryland has a right to impose policies and procedures for the protection of the public, the staff of DJS, and the juveniles within the State's custody. The parties agree that the relief provided in this Agreement should be interpreted as extending no further than is necessary to ensure protection of youths' federal rights, and that so long as the State's policies and procedures are in accordance with federal laws and meet constitutional standards, the State of Maryland has the right to determine the philosophy by which it shall operate its juvenile justice system.
L. This Agreement is intended to enhance the conditions at the facility. This Agreement is not intended to be used to prove deficiencies in the level of care provided by the State at the facility in any proceeding other than an enforcement action between the parties.
M. It is not the intent of the DOJ to usurp the role of the State in determining how best to achieve constitutional standards, and this Agreement will be construed consistent with the principles of Federalism, to which the DOJ is firmly committed.
N. After June 29, 2008, the provisions of this Agreement shall apply only to all youth at BCJJC.
==========================================================
Page 3 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 

II. DEFINITIONS
In this Agreement, the following definitions apply:
A. "BCJJC" means the Baltimore City Juvenile Justice Center located at 300 North Gay Street, Baltimore, Maryland, and any facility that may be built to replace or supplement that facility.
A-1. "Cheltenham" means the Cheltenham Youth Facility, located at 11001 Frank Tippett Road, Cheltenham, Maryland.
B. "DJS" means the Maryland Department of Juvenile Services.
c. "DOJ" means the United States Department of Justice,
which represents the United States in this matter.
D. "Effective Date" means the last date on which the Agreement has been signed by counselor a party.
E. "The facility" means, unless the context otherwise clearly limits, BCJJC.
F. "Hickey" means the Charles H~ Hickey, Jr. School, located at 2400 Cub Hill Road, Baltimore, Maryland, but specifically excludes the New Directions program which, while located upon the grounds of Hickey, is licensed by the Maryland Department of Health and Mental Hygiene ("DHMH") as a residential treatment center, is established pursuant to the State's Health Plan for Facilities and Services, is regulated by the DHMH pursuant to COMAR 10.24.07.02(3), and was not included in the tours of the facility or in the investigation undertaken by the United States.
F. "IEP" means Individualized Education Program as defined by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490, and the regulations promulgated thereunder.
G. "Include" or "including" means "include, but not be limited to" or "including, but not limited to."
====================================================================
Page 4 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 

H. "Implement" means to give practical effect and to achieve actual fulfillment by concrete measures, including appropriate training of relevant staff.
I. "OIA" means the Maryland Department of Juvenile Services' Office of Investigations and Audits, or its successor.
J. "Quality Assurance Program" means a system of self­ audit and improvement to assess the implementation and effectiveness of all remedies instituted pursuant to this Agreement, to identify deficits that may exist, and to effectuate new measures to cure deficits identified.
K. "Seclusion" means placement of a youth alone in a locked room.
L. "Secretary" means the Secretary of the Maryland Department of Juvenile Services.
M. "State" means the State of Maryland and the Maryland Department of Juvenile Services, and their successors, contractors and agents.
N. "Suicide Precautions" means any level of watch, observation or measures to prevent self-harm.
O. "Train" means sufficiently instruct in the skills addressed, including ongoing assessment of mastery of instructional material.
P. "Youth" means any juvenile or juveniles residing at BCJJC during the operation of this Agreement.
III. SUBSTANTIVE REMEDIAL MEASURES
A. IN GENERAL
The use of the future tense in this Section should not be construed to indicate that the State has not already put into place many of the measures set out in this Section. Rather, the use of the future tense in this Section indicates that these remedies are forward-looking and that the State intends not only to continue with those measures it has already undertaken, but
=============================================================
Page 5 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 

to work diligently to identify problems and fashion solutions to them at the facility. Compliance with the provisions of this Agreement shall be measured solely by the Monitoring Team as set forth in Section V. A. below.
B. PROTECTION FROM HARM CHELTENHAM AND HICKEY - DELETED
B-1. PROTECTION FROM HARM - BCJJC
i. Protection from Youth-on-Youth Violence The State shall take all reasonable measures to assure that youth are protected from violence by other youth.
11. Reporting of Staff Youth-on-Youth Violence The State shall develop and implement appropriate policies, procedures 'and practices to enhance the reporting to appropriate individuals of incidents of youth-on-youth violence and to provide that such reporting may be done through confidential means, without fear of retatiation for making the report. The State shall document and report appropriately and with sufficient .detail all such incidents.
iii. Senior Management Review The State shall develop and implement a system for review by senior management of youth-on-youth violence.
iv. Staff Training in Behavior Management, De­ Escalation and Crisis Intervention - DELETED
v. Behavior Management Program The State shall develop and implement an effective behavior management program at the facility throughout the day, including during school time and shall continue to implement the behavior management plan. The State shall develop and implement policies, procedures and practices under which mental health staff provide regular consultation regarding behavior management to direct care and other staff involved in the behavior management plans for youth receiving mental health services, and shall develop a mechanism to assess the effectiveness of interventions utilized.
vi. Staffing The State shall employ sufficient numbers of adequately trained direct care and supervisory staff to supervise youth safely, protect youth from harm, and allow
====================================================================
Page 6 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008· 


-~--.--.-.-.-~------~-.

-- -

_._ - -.- - - - - - ~ -~-~--------~-

.....

. . --~---

..

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SECOND AMENDED SETTLEMENT AGREEMENT

. youth reasonable access to mental health, education services, structured rehabilitative programming, and adequate time spent in out-of-room activities, and that it shall continue to provide suffi~ient numbers of staff at the facility.

vii. Environmental Security Hazards - DELETED

C. SUICIDE PREVENTION - CHELTENHAM AND HICKEY - DELETED

C-1. SUICIDE PREVENTION - BCJJC

i. Implementation of Policy The State shall take all reasonable measures to assure that all aspects of its Suicide Prevention Policy are implemented.

ii. Mental Health Response to Suicidal Youth ­ DELETED

lll. Supervision of Youth at Risk of Self-Harm The State shall sufficiently supervise youth in seclusion to maintain their safety.

,

-I

iv. Housing for Youth at Rlsk of Self-Harm - DELETED

v. Documentation of Suicide Precautions The following information shall be thoroughly and correctly documented, and provided to all staff at the facility who need to know such information:

a. the times youth are placed on and removed from precautionsi

b. the levels of precautions on which youth are maintainedi

c. the housing location of youth on precautionsi

d. the conditions of the precautionsi and

e. the times and circumstances of all observations by staff monitoring the youth.

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- - - - - - ----~-"-------~--.
SECOND AMENDED SETTLEMENT AGREEMENT
vi. Suicide and Suicide Attempt Review - DELETED
vii. Environmental Suicide Hazards - DELETED
D. MENTAL HEALTH - CHELTENHAM AND HICKEY - DELETED
D-l. MENTAL HEALTH - BCJJC - DELETED
E. MEDICAL CARE - CHELTENHAM AND HICKEY - DELETED
F. SPECIAL EDUCATION- CHELTENHAM AND HICKEY - DELETED
F-l. SPECIAL EDUCATION - BCJJC
i. Proyision of Required Special Education The State shall provide all eligible youth confined at the facility special education services as required by the IDEA, 20 U.S.C. §1400 et seq., and regulations promulgated thereunder.
ii. Screening and Identification Qualified professionals shall provide prompt and adequate screening of facility youth for special education needs, including identifying youth who are receiving special education in their home school districts and those eligible to receive special education services who have not been so identified in the past.
iii. Parent, Guardian and Surrogate Involvement ­ DELETED
iv. Individualized Education Programs The State shall develop and/or implement an adequate IEP, as defined in 34 C.F.R. § 300.320, for each youth who qualifies for an IEP. Consistent with the requirements of 34 C.F.R. § 300.323(c), within 30 days of a determination that a youth is eligible for special education and related services, the State shall conduct an rEP meeting to develop an IEP. As part of satisfying this requirement, the State must conduct required re-evaluations of IEPs, adequately provide and document all required instructional services, conduct appropriate assessments and comply with requirements regarding student and teacher participation in the IEP process. Mental health staff shall be involved in development of IEPs of all youth with identified mental illness.
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SECOND AMENDED SETTLEMENT AGREEMENT 

Goals and objectives shall be stated in realistic and measurable terms.
v. Staffing - DELETED
G. FIRE SAFETY - CHELTENHAM AND HICKEY - DELETED
IV. COMPLIANCE AND QUALITY ASSURANCE - DELETED
V. MONITORING AND ENFORCEMENT
A. Monitoring Team Selection The State in its discretion may undertake to provide services consistent with "best practices" recommended by leading experts in the field of juvenile justice. However, the parties contemplate active monitoring solely for compliance with constitutional and federal statutory standards.
i. Members The State and DOJ have together selected a Monitoring Team. Members of the Monitoring Team shall include experts in the fields of juvenile justice/protection from harm and education. The Monitoring Team shall have full authority to assess, review and report independently on the State's implementation of and compliance with the provisions of this Agreement. The parties have chosen one Monitoring Team Member to be the Monitoring Team Leader, who shall be responsible for coordinating site visits to the facility, arranging for appropriate information-sharing between Monitoring Team Members, and for preparing the reports to the parties as required in this Agreement.
ii. Non-delegation of Responsibilities The Mbnitors shall be considered key personnel; their responsibilities may not be delegated. The Monitors may employ a staff sufficient to complete their duties efficiently, but compensation for such staff shall be paid by the Monitors and a budget for same must be included in the contract entered into with the State.
lll. Independence of Monitoring Team Neither party, nor any employee or agent of either party, shall have any supervisory authority over the Monitoring Team's activities, reports, findings, or recommendations. Members of the Monitoring Team may be terminated if both parties ·agree and upon
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SECOND AMENDED SETTLEMENT AGREEMENT 

good cause shown. Good cause shall include any violation of State or federal law which reasonably calls into question the Monitoring Team member's fitness to continue serving as a member of the Monitoring Team. In the event the parties do not agree upon the need for termination, the parties agree to submit the resolution of this matter to dispute resolution as described in Section VII N. of this Agreement.
iv. Costs The cost for the Monitoring Team shall be borne by the State. Subject to all necessary State approvals, including if necessary the Board of Public Works, these costs shall be as set forth in the contracts executed with members of the Monitoring Team.
v. Replacement of Monitoring Team Members If a member of the Monitoring Team. is terminated pursuant to section iii above, or becomes unavailable, the parties shall determine jointly whether a replacement is needed, and if so, jointly select a replacement within thirty (30) days of the member's unavailability. In the event that the parties do not agree upon the need for or identity of a replacement, the parties agree to submit the decision to dispute resolution as provided in Section VII N. of this Agreement.
B. Monitoring Team's Access The Monitoring Team shall have full and complete access to the facility, records relevant and appropriate for the effective monitoring of this Agreement, staff, and residents. The Monitoring Team shall coordinate the timing of its on-site facility visits and requests for documents so as to minimize disruption to facility operations and State employee work functions. The Secretary shall direct all employees to cooperate fully with the Monitoring Team. All non­ public information obtained by the Monitoring Team shall be maintained in a confidential manner. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the State may assert, including those recognized at common law and created by statute, rule or regulation against any other person or entity with respect to the disclosure of any information.
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SECOND AMENDED SETTLEMENT AGREEMENT
C. Monitoring Team's Communications Members of the Monitoring Team may communicate with the parties as necessary to monitor the Agreement effectively.
D. Limitations on Public Disclosures by Monitoring Team. Members
i. Prohibition on Public Statements; Confidentiality Agreement Unless required by law, or as provided in this Agreement, neither the Monitoring Team members nor any of their staff shall make any public statements or issue findings with regard to any information provided to the Monitoring Team or the Monitoring Team's staff pursuant to this Agreement. Each member of the Monitoring Team shall execute a confidentiality agreement limiting disclosure of information obtained, consistent with law, to protect the privacy of the children served in the facility.
ll. Limits on Testimony Except when subject to compulsory process or for the purposes of testifying in litigation between the parties, no member of the Monitoring Team nor any member of their staff may testify in any public forum or legislative proceeding with regard to any matter or subject that he or she may have learned as a result of his or her participation on the Monitoring Team.
iii. Conflicts of Interest Unless such conflict is waived by both parties, ·members of the Monitoring Team shall not accept employment or provide consulting services that would present a conflict of interest with their responsibilities under this Agreement including being retained (on a paid or unpaid basis) by any current or future litigant or claimant or such litigant's or claimant's attorney, in connection with a claim or suit against the State or its departments, officers, agents or employees concerning matters relevant to this Agreement.
E. Monitoring Team's Reports The Monitoring Team shall provide the parties with reports describing the exte~t to which the State has substantially complied with each substantive provision of the Agreement and the steps taken by DJS to implement the Agreement. Such reports shall be issued semi­ annually. The first report shall issue six months after the effective date of the original Agreement, unless the parties
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SECOND AMENDED SETTLEMENT AGREEMENT 

jointly agree otherwise. The reports shall be provided to the parties in draft form for comment at least four weeks prior to their issuance. A draft of the final report shall be provided to the parties on April 30, 2009. Comments/responses of the State and the DOJ shall be included separately in the reports. These reports shall be written with due regard for the privacy interests of individual youth and staff and the interest of the State and DJS in protecting against disclosure of non-public information. Monitoring Team reports shall not include names or personally identifying information of youth. Where Monitoring Team members identify individual events or concerns about this Agreement that involve particular youth, they shall employ alternative means (other than the Monitoring Team reports) to inform the parties of the identities of the involved youth.
F. Monitoring Team's Budget and Staff The Monitoring Team's budget shall be limited as set forth in their contracts with the State. The Monitoring Team shall be responsible to compensate any and all staff deemed necessary to allow the Moriitoring Team to carry out the responsibildties described in this Agreement without exceeding their contractual amounts.
VI. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
A. DOJ Access The DOJ, upon reasonable notice to the State's counsel, shall have access to the facility, youth and staff records, and staff and residents of the facility. The DOJ shall have the right to conduct confidential interviews with staff, residents, and former residents. The United States shall abide by the Confidentiality Agreement reached by the parties in January 2003. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the State may assert, including those recognized at common law and created by statute, rule or regulation against any other person or entity with respect to the disclosure of any information.
B. State Response to DOJ Questions Within a reasonable time following receipt of written questions from the DOJ concerning the State's compliance with this Agreement, DJS shall provide the DOJ with written answers and any requested documents regarding the State's compliance with the requirements of this
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- - - - - - - - - -~--------------~-~-
SECOND AMENDED SETTLEMENT AGREEMENT
Agreement. Such inquiries and document requests will be coordinated with the activities of the Monitoring Team.
C. State Documentation of Compliance The State shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. The State shall also maintain (so long as this Agreement remains in effect) any and all records required by or developed under this Agreement.
D. Department of Social Services Investigative Files Because child abuse investigation records of the Departments of Social Services in Maryland are confidential under State law and not considered by DJS in conducting its own independent investigation and addressing or remedying allegations of child abuse by staff, neither the Monitoring Team nor the United States shall seek such records. No representative of the State (including the Independent Juvenile Justice Monitor) shall release such records to the United States or the Monitoring Team. The ultimate determination by the Department of Social Services that alleged child abuse is indicated, unsubstantiated or ruled out, if it is received by DJS, may be obtained from DJS by the United States and/or the Monitoring Team.
VII. IMPLEMENTATION AND TERMINATION
A. Information to Employees The State shall provide information and training so that all current and future employees at the facility understand and implement the terms of this Agreement.
B. Implementation The State shall implement all measures reasonably necessary to achieve substantial compliance with this Agreement.
C. Integration This Agreement shall constitute the entire integrated Agreement of the parties,' No prior or contemporaneous communications, oral or written, will be relevant for purposes of determining the meaning of any provisions herein.
D. Enforcement This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, and successors.
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SECOND AMENDED SETTLEMENT AGREEMENT 

E. Rule 41 Conditional Dismissal Upon execution of this Second Amended Settlement Agreement, the Parties shall file a Joint Motion for Conditional Dismissal of the amended complaint pursuant to Federal Rule of Civil Procedure 41(a) (2) in the United States District Court for the District of Maryland, Northern Division. A copy of this Agreement shall be attached to the Joint Motion for Conditional Dismissal and that motion shall: (1) request that the court dismiss the amended complaint upon the passage of four (4) years from the date of the original complaint's filing or the State's earlier substantial compliance with the terms of this Agreement; (2) request that the court place the case on its inactive docket; and (3) retain jurisdiction over the case until four (4) years have passed since the original filing or an earlier final dismissal is entered. The parties expressly declare that this provision shall not be interpreted to provide for active judicial supervision.
F. Notice to State and Opportunity to Cure If the DOJ believes that the State has failed to fulfill a significant obligation under this Agreement, the DOJ will, prior to seeking judicial action to enforce the terms of this Agreement, give written notice of the failure to the State. The State shall have sixty days from the date of such notice to cure the failure, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, and provide the DOJ with sufficient proof of its cure. At the end of the sixty day period, or such additional time as is reasonable due to the natu~e of the issue and agreed upon by the parties, in the event that the DOJ determines that the failure has not been cured, the DOJ may seek judicial action without further notice. However, in case of an emergency posing an immediate threat to the health or safety of youths, the United States shall notify the State, but may omit any period for cure described herein, before seeking judicial action. The DOJ commits to work in good faith with the State to avoid enforcement actions.
G. State's Reservation of Defenses If the United States seeks judicial enforcement of this Agreement, the State reserves the right to raise as a defense exigent circumstances in the State, including, but not limited to: economic recession,
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SECOND AMENDED SETTLEMENT AGREEMENT 

necessary diversion of resources and personnel in the event of widespread threat to public health, or act of war.
H. United States' Position on State's Reservation of Defenses Nothing in this Agreement shall be construed as an acknowledgment or admission by the United States that any defense raised by the State relieves the State of its obligation under this Agreement.
I
I. Integration This Agreement is the completely integrated agreement between the parties. The Agreement resolves the United States' current investigation of BCJJC, Cheltenham and Hickey pursuant to CRIPA and Section 14141. The United States shall not seek additiona~ measures or requirements in enforcing this Agreement.
J. Non-waiver Failure by any party to enforce this entire agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions in this Agreement.
K. Legal Standard To the extent that the State's implementation of any provision of this Agreement requires the exercise of professional judgment, the standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982), shall be applied.
L. Technical Assistance The United States shall provide technical assistance to the State by assisting in identifying potential grants and other opportunities for low-cost or cost­ free training or by providing consultants to train senior staff in the areas of Adolescent Behaviors, De-Escalation Techniques, and Identification and Recognition of Mental Health Needs in Facility Youth, and Integration of Mental Health Services into Direct Care Service Delivery. This technical assistance will be provided in a "train the trainers" format. Should the DOJ engage consultants to tour the facility, the DOJ shall.provide the State with an opportunity to conduct exit interviews with the consultants and with copies of the 'consultants' reports, if such reports are produced.
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SECOND AMENDED SETTLEMENT AGREEMENT 

M. Agreement Coordinator The State shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement.
N. Dispute Resolution The parties recognize that there may be areas about which they can not easily agree during the course of implementation of this Agreement. In order to address this possibility, the parties agree to employ, when necessary, the services of a neutral party and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. The parties agree to first look to neutral mediators who may be available at no cost, such as ones selected with the assistance of the Federal Mediation and Conciliation Service or available with third party grant funding through the Maryland Mediation and Conflict Resolution Office. Should costs be incurred for a mediator, the parties agree to share equally such costs.
O. Termination
i. Time Frame This Second Amended Settlement Agreement shall 'terminate definitively and unconditionally no later than June 29, 2009.
ii.Section-by-Section Substantial Compliance The Agreement may end on a section-by-section basis earlier than the termination date if the State has substantially complied with the provisions of that section of the Agreement at the facility for at least six (6) months.
a. Burden of Proving Substantial Compliance The burden shall be on the State to demonstrate to the appropriate member or members of the Monitoring Team that the State has complied substantially with the Agreement. A finding of substantial compliance by the Monitoring Team may not be unreasonably withheld.
b. Substantial Compliance Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
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SECOND AMENDED SETTLEMENT AGREEMENT 

c. Standard for Substantial Compliance The parties agree that the standards against which substantial compliance will be monitored are those that are constitutionally required and required by Federal statute, as provided in Section V. A. The State's unilateral implementation of best practices will not modify the standard.
P. Defense of Agreement The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court shall be sought.
Q. Unforeseen Delay If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the State shall notify the DOJ in writing within a reasonable time after the State becomes aware of the unforeseen circumstance and its impact on the State's ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such-failure.
R. Non-Retaliation No person reporting conditions which may constitute a violation of the laws or Constitution of the United States or this Agreement shall be subjected to retaliation in any manner for so reporting: See 42 U.S.C. § 1997d.
S. Subheadings All subheadings in this Agreement are written for convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
T. Severability In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
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Page 17 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008 


SECOND AMENDED SETTLEMENT AGREEMENT 
 FOR THE STATE: 


/s/ Martin O'Malley MARTIN O'MALLEY Governor State of Maryland

Date

/s/ Donald W. Devore DONALD W. DEVORE Secretary of Juvenile Services

Date

APPROVED FOR LEGAL SUFFICIENCY:

/s/ Robert T. Fontaine ROBERT T. FONTAINE Assistant Attorney General State of Maryland

Date

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SECOND AMENDED SETTLEMENT AGREEMENT 
 FOR THE UNITED STATES: 


/s/ Grace Chung Becker
GRACE CHUNG BECKER Acting Assistant
Attorney General Civil Rights Division

Date:

/s/ Shanetta Y. Cutlar
SHANETTA Y. CUTLAR Chief Special Litigation Section

Date:

/s/ Daniel H. Weiss DANIEL H. WEISS Deputy Chief Special Litigation Section Bar Number 08096

Date:

/s/ Joshua C. Delaney
JOSHUA C. DELANEY STACEY K. GRIGSBY COREY M. SANDERS Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Daniel.Weiss@usdoj .gov Joshua.Delaney@usdoj.gov Stacey.Grigsby@usdoj.gov (202) 514-6253 (202) 514-0212 (fax)

Date:

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Page 19 of 19 
 June 29, 2005, as amended May 17, 2007 and June 23, 2008 


 
 u. S. Department of Justice
Civil Rights Division

Office of rhe AssisIant Arromey General

Washing lOll, D.C. 20035
April 9, 2004

The Honorable Robert L. Ehrlich, Jr. Governor of Maryland 100 State Circle Annapolis, Maryland 21401
Re: Investigation of the Cheltenham Youth Facility in Cheltenham, Maryland, and the Charles H. Hickey, Jr. School in Baltimore, Maryland
Dear Governor Ehrlich:
I write to report the findings of the Civil Rights Division's investigation of conditions at the Cheltenham Youth Facility (~Cheltenham") and the Charles H. Hickey, Jr. School ("Hickey"). On }\ugust 30, 2002, we notified then-Governor Parris Glendening of our intent to conduct an investigation of Cheltenham and Hickey pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 ("Section 14141"). As we noted, both CRIPA and Section 14141 give the Department of Justice authority to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
Between April 28 and June 12, 2003, we conducted on-site inspections of Cheltenham and Hickey with expert consultants in juvenile justice, medical care, mental health care, education, and sanitation. We interviewed staff, youth residents, medical and mental health care providers, teachers, and school administrators at both facilities. Before, during, and after our visits, we reviewed an extensive number of documents, including policies and procedures, incident reports, youth detention records, medical and mental health records, grievances from youth residents, investigations of the Department of Juvenile Services'

-2 -
("OJS") Office of Professional Responsibility and i\ccountability ("OPRA n ), reports of the Office of the Independent Juvenile Justice Monitor ("Independent Monitor") ,I unit logs, orientation materials, staff training materials and school records. Following each tour, we conducted exit conferences with facility and DJS officials, during which our consultants described their initial impressions and concerns.
We commend the staff of both facilities and the DJS central offices for their helpful and professional conduct throughout the course of the investigation. 2 Once granted access, we received full cooperation with our investigation. We also appreciate the State's receptiveness to our consultants' on-site recommendations.
Consistent with the statutory requirements of CRIPA, we now write to advise you of the findings of our investigation, the facts supporting them, and the minimum remedial steps that are necessary to address the deficiencies we have identified. As described more fully below, we conclude that certain deficiencies violate the constitutional and federal statutory rights of the youth residents. In particular, we find that children confined at Cheltenham and Hickey suffer har~ or the risk of harm from constitutional deficiencies in the facilities' confinement practices, suicide prevention measures, mental health and medical care services, and fire safety. In addition, the facilities fail
This office is created by statute, Md. Code, Art. 490, § 41, to monitor conditions in all OJS facilities and report its findings to the Governor, the Maryland General Assembly and the OJS Secretary. Several staff members are assigned by region to visit the facilities, conduct announced and unannounced tours, and write detailed reports of their findings, recommendations, and DJS responses. Independent Monitor officials have identified similar systemic violations as those identified in this letter at both facilities, and reported these problems to OJS and others. Their reports reflect continuing frustration at OJS's failure to institute effective remedies to the patterns cited.
Our tours of Cheltenham and Hickey were initially delayed nearly seven months by negotiations with the State regardIng the terms of our access to the facilities and confidentiality of documents. Shortly after we met with OJS Secretary Kenneth C. Montague, Jr. in March 2003, we were able to commence our document review and on site facility tours.

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to provide required education services pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401, and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794.
I. BACKGROUND
At the time of our tours, Cheltenham was a 180-bed facilitv for boys aged 12 to 18. 3 The facility, which is operated by DJS, serves primarily as a pre-adjudication detention center. Some youth confined at Cheltenham have already been adjudicated delinquent and committed to DJS care, but are confined at Cheltenham "pending placement" in a treatment program elsewhere. A youth's average length of stay at Cheltenham is approximately 25 days, although some youth are there in excess of 200 days.
Hickey is a facility for boys aged 12 to 20 that is owned by the State but which, at the time of our tours, was operated by a private company, Youth Services International (YSI), through a contract with DJS./j Hickey has a 330-bed capacity, and at the time of our tour, had a total of 263 youth in residence. The facility consists of two separate campuses, one within a secure fence and one outside the fence. Within the secure area, there is a detention facility for youth awaiting adjudication, and two programs for youth committed to DJS care: the Intermediate program (6-10 months) and the Enhanced Program (12-18 months). Youth who have been adjudicated delinquent and are pending placement in other treatment programs are confined in the secure campus at Hickey. Outside the fenced area is a short term program (30-90 days) for committed youth, known as the Impact Program. The average length of stay for a youth at Hickey lS 325 days, although some youth have been there in excess of 700 days.5
The State reports that it has closed a number of housing units and that the population at Cheltenham is now under 60 youth residents. At the time of our tours, Cheltenham housed 216 youths.
The State reports that it is has taken over management of Hickey, as it has not renewed its contract with YSI, which expired at the end of March 2004.
We are aware that the General Assembly is currently considering legislation which may alter the future plans for serving youth in DJS custody. These efforts appear aimed, in part, at reducing the size of facilities such as Cheltenham and Hickey and, presumably, improving the quality of care for youth.

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II. LEGAL STANDARDS
As a general matter, States must provide confined juveniles wi th reasonably safe condi tions of confinement. See Youngberg v. Romeo, 457 u.S. 307, 315-24 (1982); Bell v. Wolfish, 441 U.S. 520, 535-36 & n.16 (1979). Such constitutionally mandated conditions include the right to adequate medical care, a concept that embraces both mental health treatment and suicide prevention measures. See Patten v. Nichols, 274 F.3d 829, 835 (4th Cir. 2001); Shrader v. White, 761 F.2d 975, 978 (4th Cir. 1985); Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992). Further, confined juveniles are entitled to protection from physical assault and the use of excessive force by staff. Youngberg, 457 u.S. at 315-16. The State is also obliged to provide special education services to juveniles with disabilities pursuant to the IDEA. As described below, the State has fallen well short of these constitutional and federal statutory obligations.
In assessing whether the constitutional rights of institutionalized juveniles have been violated, the governing standard is the Due Process Clause of the Fourteenth Amendment. See You:Jgberg v. Romeo, 457 U.S. 307, 315-16 (1982); Patten, 274 F.3d at 840-41. Accordingly, the proper inquiry focuses on whether the conditions substantially depart from generally accepted professional judgment, practices, or standards. See Youngbero, 457 U.S. at 323.
III. FINDINGS
A. PROTECTION FROM HARM
Our investigation revealed major constitutional deficiencies In the harm protection measures in place at Cheltenham and Hickey. In particular, both facilities fail to protect youth from: (i) staff violence; (ii) unsafe restraint practices; (iii) youth violence; (iv) excessive isolation; and (v) other abusive practices.
1. Staff Violence
The evidence unearthed in our probe indicates a deeply disturbing degree of physical abuse of youth by staff at both Cheltenham and Hickey. The following examples are illustrative:

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In January 2004, the Maryland State Police filed criminal assault charges against four Cheltenham staff members who allegedly restrained a youth and beat him. The police investigation reveals that after the youth resisted going to bed early, four staff members grabbed him. The unit supervisor put the youth's arms "in a chicken wing hold u over his head while other staff members punched him in his face and kicked him in the ribs and back. By the end of the incident, staff had dragged the youth back to his room and his pants and underwear had been ripped and pulled down to his ankles. Medical records document injuries to the youth's forehead, eye area and lip. In addition, the youth reported pain in his ribs. The youth was sent to the hospital for care.
In January 2004, the Maryland State Police filed criminal assault charges against two Hickey staff members for assaulting a youth. A police investigation revealed that the youth, upset because a routine staff search of his room left it in disarray with some items missing, kicked his door. A staff member then slapped the youth in the face with an open hand and at:empted to wrestle him to the ground. Although two staff members attempted to intervene to stop the assault, another staff member grabbed the youth from behind and began striking him with a closed fist. The youth was left injured in his room for three hours before being seen by the nurse. Photographs taken by the nurse reportedly depict injuries to the youth's face and body consistent with being grabbed around the neck and being struck in the face.
In a May 2003 incident, Child Protective Services found that a Hickey staff member struck a youth in the face, which another staff member witnessed.
In a May 2003 incident, a Hickey staff member assaulted a youth who refused to leave a school classroom. The staff member grabbed the youth around the neck and slammed him against the wall outside the classroom. The youth then threw a plastic chair towards the staff member, but missed him. The staff member slammed the youth to the ground, choking, punching and kicking him. During our visits, we observed injuries to the youth's face and neck.

- 6-
In a March 2003 incident, a youth at Cheltenham was involved in an altercation with a staff member at the school. After another staff member restrained the youth and escorted him to a transportation van, the staff member involved in the altercation entered the van and struck the youth with his fist.
In a March 2003 incident, a Hickey staff member, breaking up a youth-on-youth fight, hoisted one of the youth in the air and "slamJned him to the floor, II injuring his left arm. The facility failed to inform the youth's parents, who filed a report with Child Protective Services after seeing a cast on their son's arm o~ visiting day a week later. Staff reports failed to describe any injuries to the youth. OPRA investigators described the incident as "another example of [Hickey] staff trying to conceal incidents."
In a February 2003 incident at Cheltenham, a youth, upset that a staff member had thrown his breakfast away, tried to push past the staff member to get out of his room. The staff member grabbed him by the throat and pushed him back onto the bed, choking and cursing him. The youth was treated for injuries to his neck and pain in his throat.
Our interviews with direct care staff, youth, and other DJS employees confirmed that the above examples are representative of recurrent problems at the facilities and are not aberrational. Our review of incident reports and information from OPRA investigators reveals that incident reporting by staff frequently fails to provide any detail regarding the incidents. Indeed, most OPRA investigations are not initiated by staff incident reports, but rather from informal sources of information. The recurrent nature of the incidents reflects a lack of appropriate training, reporting, supervision, and quality assurance practices at Cheltenham and Hickey. While incidents that come to light are appropriately investigated by OPRA, and often lead to disciplinary measures against involved staff, the facilities have failed to implement systemic measures to ensure that similar incidents do not recur.
In addition, our investigation revealed that individuals with felony convictions and histories of excessive force against juveniles may, at times, be hired as staff members at these facilities. Notably, we found several instances where we believe

- 7-
that staff with either felony convictions or previous histories of excessive force in a juvenile detention facility were involved in incidents of abuse. This is, quite obviously, entirely unacceptable.
2. Unsafe Restraint Practices
Although restraint may be an appropriate tool when used properly, the methods used by staff at Hickey to restrain unruly youth depart substantially from generally accepted practices and create grave risk of harm to youth. In a technique the facility terms "lock and drop," staff take a youth to the ground and force him into a prone position (lying with stomach to the ground) , placing weight on the youth's upper torso to hold him to the ground. This position, demonstrated to us by training staff, can prevent the youth from breathing and cause asphyxiation. As we informed staff in our exit interviews, the practice should cease immediately.
Staff and youth also reported seeing staff members grab disruptive youth by the neck, another inappropriate method of restraint. One youth described his restraint experience as being "slammed on the neck and arms bent way back." Another youth described the experience as "they put a knee in your back, one hand on the back of your neck and the other hand bends your arm up in back."
The danger associated with this practice is not merely theoretical; our investigation revealed an incident in which a youth required treatment at the emergency room following a restraint. Another youth restrained in March 2002 vomited and appeared to have inhaled some of the vomitus, triggering a loss of consciousness. He was sent to the emergency room where he was diagnosed with transient asphyxia. An Independent Monitor official has also documented various incidents at Hickey in which youth were harmed during restraint. In one incident, a youth suffered neck and shoulder injuries. In another restraint, a youth suffered a seizure and required hospitalization. In still another, a 300-pound staff member sat on a youth and the staff mocked the youth when he complained that he could not breathe.
These incidents reflect a serious risk of harm to youth. The State must establish a safe method of restraint and ensure that staff are trained in its'appropriate and safe use.

-8 -
3. Youth Violence
Generally accep~ed professional practices require that facilities confining youth must protect youth from assault by other youth. Facilities must maintain sufficient structure, safeguards, and staffing to ensure safety. Both Hickey and Cheltenham experience unacceptably high levels of youth-on-youth violence. Consider the following illustrative examples:
The Independent Juvenile Justice Monitor reported that six fights broke out in a single day in November 2003 at Cheltenham.
During our June 2003 tour of Hickey, we were made aware of a fight on the Kennedy Unit in which three youth allegedly assaulted another individual, who required 30 'stitches to close the wound on his face.
In a May 2003 incident, a youth at Cheltenham assaulted another youth who was sleeping in the day room during free time, resulting in a fracture of the youth's left orbit. The one staff member responsible for supervising the day room had fallen asleep and saw none of the incident. This staff member had worked several forced double shifts that week, and could not stay awake due to exhaustion.
In a May 2003 incident at Hickey, one youth received stitches in his head after several youth assaulted him In the day room and hit him with a wooden chessboard.
In an April 2003 incident, a group of youth at Hickey assaulted another youth. The assault lasted for a period of minutes without staff intervention. The youth had a bruised forehead and swollen finger, but staff did not refer him for medical care. Staff also failed to report the incident as required by policy and procedure.
In another April 2003 incident, a youth at Hickey suffered a broken jaw after youth attacked him with a stick during outdoor recreation time.

-9
In a third April 2003 incident, a youth at Cheltenham, intending to punch one particular youth, struck a third youth who was knocked unconscious. The injured youth was hospitalized for 2 days.
In March 2003, Cheltenham experienced a riot to which local law enforcement authorities had to respond in order to regain control of the facility. The incident began during a program in the facility gymnasium for youth from all of the units. Youth from Rennie cottage attacked youth from Whyte cottage, after which they were separated. However, some youth from Rennie ran out of the gym and chased and assaulted staff and youth from other cottages. Two youth were hospitalized, one with a head injury and another with bruised ribs. Other youth were physically assaulted and forced to remove their clothes. Youth were able to use a crowbar-like object to pry open some room doors. OPRA issued a report which included recom~endations for corrective action. The measures had not been implemented at the time of our tours.
In a January 2002 incident at Cheltenham, three youth attacked one youth, resulting in eye injuries that required hospital treatment.
The pervasive violence at Cheltenham appears to result, 1n part, from the lack of sufficient numbers of adequately trained staff. Youth-to-staff ratios at Cheltenham have been as high as 20:1 during the day and 60:1 at night. These ratios deviate substantially from generally accepted professional practices. Many states require one staff per eight youth during the day and one staff per sixteen youth at night. Further, due to the physical layout of the housing units and the multiple supervisory responsibilities for each staff member, staff are not always present when youth-on-youth violence cccurs. Furthermore, due to the volatile nature of the youth, staff report that they are often too busy attempting to maintain a minimal level of control in the hous1ng units to engage in meaningful activities to help youth develop more acceptable behavioral skills or to develop relationships with youth. Thus, staff abilities to identify prdblems and intervene meaningfully to avert violence are

- 10 -
limited. 6 Furthermore, staff are frequently required to work double shifts, often without advance warning, leaving them tired, short-tempered and less alert.
At Hickey, inadequate training of staff contributes to youth violence. Our investigation revealed that staff at both facilities lack skills and training in de-escalating crises and youth-on-youth conflicts. This absence of training impedes the ability of staff to intervene successfully in volatile situations of ~hich they are aware, and can even lead to escalation of youth aggresslon during a crisis.
Staff at both facilities also fail to report many serious incidents that occur. A DJS internal investigation revealed that Cheltenham staff were reporting only 27 percent of incioents that required reporting. At Hickey, staff reported only 66 percent of incidents requiring reporting. Furthermore, even those incident reports that are submitted lack important information such as details of who was present during the incident, what happened during the incident, and what precipitated the incident.
The absence of an adequate classification system is another contributing factor to the frequency of youth assaults. Generally accepted professional .standards require that youth be housed and supervised in accordance with their classification. Reliable classification systems take into consideration such information as a youth's age, charged offense, history of violence and escape, gang membership or affiliation, health and mental health concerns, and institutional history. Neither Cheltenham nor Hickey has an adequate classification system.
At Cheltenham, staff do not separate violent and non-violent youth. Youth are classified by age and, for some age groups, seriousness of charged offenses, but youth who should be housed separately often are not. For example, two youth at Cheltenham required hospital treatment following a fight; one boy had serious injuries to his face. The youth returned to Cheltenham at different times, but were both housed in the infirmary where
The lack of sufficient staff even impacts the ability of youth who are injured to obtain prompt medical care. For example, Cheltenham staff reported that one youth who was in a fight on a Saturday night and sustained a shoulder injury had to wait until Sunday night to be taken to the hospital for medical treatment. Staff reported that a lack of security/transportation staff caused the delay.

- 11 -
they were in close proximity. While the youth did not continue their assaultive behavior, the facility apparently undertook no preventative measures in response to the incident. The youth were not reclassified to ensure their separation nor were staff caring for them informed that these youth were prone to violence against one another.
We are likewise very troubled by the fact that, at Hickey, youth with identified mental illness are placed on the same units with youth who have poor impulse control and other behavioral disorders. This practice places the youth with serious mental illness at an especially high risk of victimization.
The high degree of youth violence at Hickey and Cheltenhaln is a partial byproduc( of inadequate security measures. At Hickey, youth are not sufficiently supervised, allowing them to tamper with locking mechanisms on youth room doors, disable the locks, and enter other youth rooms to assault one another. tor example, one youth at Hickey was able to enter another youth's room undetected and urinate in his bed. The victim of this incident was then able to enter the perpetrator's room and defeca~e in his bed. Following this incident, the original perpetrator then entered the original victim's room to assault him, all of which occurred without staff intervening to defuse the escalating conflict and prevent harm.
A further example of insufficient supervision occurred in April 2003, when staff from the Independent Monitor's of:ice visited a Hickey living unit. The monitor reports that he asked to inspect a batllroom where the showers appeared to be running and had a foul smell. The bathroom was locked, and when the monitor asked the staff member on duty why the showers were running, the staff member indicated that no youth were in the locked bathroom, but that the showers sometimes do not turn off completely. When the bathroom was unlocked, however, two youth were found showering, unsupervised, locked ill completely without staff knowledge.
In addition to incubating an environment extraordinarily receptive to violence, the lack of sufficient staff supervision also contributes to opportunities for youth to attempt escape. tor example, a youth at Hickey attempted to scale the fence on July 1, 2003, but became caught in the razor wire. The fence alarm sounded 23 times, but the youth's attempt to scale the fence went undetected. Supervision was so poor that the youth was able to return to his unit, severely bleeding, and hide in the bathroom before staff discovered his injuries or his attempt at escape.

12 -
Meanwhile, on May 22, 2003, two youth at Cheltenham escaped through the perimeter fence with the help of an individual on the other side. During the previous night, the fence security alarm had sounded numerous times, but staff failed to detect that the fence had been cut.
4. Excessive Use of Disciplinary Isolation/Lack of Procedural Protections
The facilities' isolation 7 practices substantially depart from generally accepted professional practices in that juveniles are isolated for excessive periods of time, for minor offenses, and wi thou t appropr i a te procedura I prot ect ions. I sol a t ion should be used only to the extent necessary to protect youth from harm to themselves or others or to maintain institutional discipline. Youth placed in disciplinary isolation are entitled to notice of their charges, a hearing before an independent decision-maker, and an opportunity to present evidence in their defense. Hewett v. Jarrard, 786 F.2d 1080, 1089 (11th Cir. 1986); fvlary and Crystal v. Ramsden, 635 F.2d 590, 599 (7th Cir. 1980).
The facilities have no procedure for providing due process to youth wto are isolated for more than 24 hours. No hearing procedures exist at either facility. Facility and DJS staff described to us policies under which (i) an upper-level manager must approve isolation of youth, and (ii) the youth must be released when he is back under control. However, interviews with staff revealed that, while the supervisory staff might come by and check in on youth, supervisory staff are not actively engaged in deciding when it is appropriate to end an isolation. Instead, the staff member who places the youth in isolation decides when he may be released, resulting in a substantial departure from generally accepted practices by allowing the involved staff member -- rather than some neutral party -- to make this decision. The result is that youth remain in isolation, often
Isolation includes all times in which a youth is placed alone in a locked room for the purposes of discipline or due to out of control behavior. Staff at Cheltenham and Hickey generally use the term isolation to refer to locking youth alone in their own rooms, and use seclusion to describe locking youth alone somewhere other than their rooms. Professionals use the terms isolation and seclusion interchangeably to refer to both practices. We choose the term isolation in this discussion for the sake of clarity.

- 13 -
sleeping, long after they are in complete control of their behavior. In addition, youth isolation is not consistently documented in log books; during our visit to Hickey, senior staff were unaware of some isolation incidents that occurred.
5. Other Abusive Practices
a. Inappropriate Staff-Youth Relationships
Our investigation revealed incidents of misconduct at both facilities in which female staff were found to have engaged in inappropriate relationships with male youth residents as young as 14 years old. For example, in June 2003, during an investigation of a physical assault by a staff member on a youth at Hickey, the staff member admitted to sexual abuse of another youth. In February 2003, a missing youth was found driving a car registered to a female staff person at Hickey. In April 2002, a staff member resigned after it was revealed that she had engaged in sexual intercourse ~lth a youth resident at Cheltenham. Relationships of this variety clearly violate the Constitution. Unfortunately, the facilities have failed to institute adequate measures to prevent incidents such as these from recurring.
b. Denial of Access to Bathrooms
Youth must have opportunities for personal hygiene including the use of toilets. Because only a small number of cells at Hickey and Cheltenham are equipped with toilets and sinks, most youth must request that staff let them out of their rooms to use the restroom. Staff at both facilities fail to meet this fundamental need. Youth frequently wake in the middle of the night and are unable to attract staff attention to let them use the restroom. Several cells smelled strongly of urine during our visits; we learned that youth sometimes urinate on their window sills or into bed linens if they are not permitted to use the restroom. Aside from the obvious sanitary problems of such behavior, leaving youth to resort to such humiliating measures lS unconscionable.
B. SUICIDE PREVENTION
Juvenile institutions must protect youth from self-harm. Cheltenham and Hickey fail to protect youth in the following ways: (i) staff fail to assess suicidal youth adequately; (ii) youth on suicide precautions receive insufficient mental

- 14 -
health services; (iii) youth at risk of self-harm are housed in unsafe circumstances; (iv) supervision of youth on suicide precautions and in seclusion is insufficient; and (v) staff lack preparation to respond appropriately to suicide attempts.
1. Insufficient Assessment of Suicidal Youth
At Cheltenham, security staff consistently identify youth in suicidal crisis and place them on appropriate levels of security precautions to prevent self-harm. However, initial evaluation by mental health staff is often delayed, particularly if a youth is placed on suicide precautions over the weekend, thus restricting the youth's activities without providing needed care.
At Hickey, staff often fail to use the instrument available to assess potential lethality either before a youth is placed on suicide precautions or when deciding whether to change the level of suicide precautions. While the State of Maryland (including Cheltenham) uses a reliable measure of lethality -- the Inventory of Suicidal Orientation (ISO-30) -- staff at Hickey use an untested screening tool that may not accurately assess lethality.
2. Insufficient Mental Health Services for Youth on Suicide Precautions
Youth on suicide precautions should receive appropriate follow-up care from mental health staff to assess whether there is an ongoing need for the youth to be placed under the restrictions associated with such precautions, and to provide treatment if necessary. In addition, a competent mental health professional must be available for consultation during hours when staff are not scheduled to be at the facility, and should be able to respond promptly when a youth requires crisis evaluation.
At Cheltenham, staff provide only inconsistent follow-up for youth on suicide precautions. Youth often spend many days in the "Observation Room" of the Infirmary without the benefit of regular clinical contact, despite a department policy which is consistent with generally accepted standards, requiring that youth be seen daily by mental health staff. Nor do staff help youth develop any skills to reduce their suicidal ideations or behaviors.
At Hickey, staff also fail to monitor youth on the highest suicide precautions with sufficient frequency. Responsibilities for care of youth in crisis during hours when mental health staff are not routinely at the facility have not been clearly defined. Infirmary staff reported that pages to on-call mental health

15 -
staff often are not answered for extended periods of time. Psychiatric backup is not provided when the staff psychiatrist is unavailable, despite a commitment by the facility to have 24-hour psychiatric on-call coverage. The person assigned by the contract mental health service provider to be on call during nonbusiness hours and on weekends, who is also the clinical director, is a physician not currently licensed to practice in the United States either as a physician or mental health professional; she has not even completed a psychiatric training program approved in the United States. Therefore, the facility fails to provide on-call crisis care in keeping with professional standards.
3. Unsafe Housing of Youth at Risk of Self-Harm
It is widely known that the first 48 hours that individuals, particularly youth, are detained In an institution present especially dangerous risks for attempted suicide. Institutions must ensure that intake area staff monitor newly arrived individuals closely to maintain their safety. At both Cheltenham and Hickey, staff are unable to maintain an appropriate watch on youth residents in the intake areas to ensure their safety.
At Cheltenham, the intake area has one holding cell. At times during the day, the staff member expected to monitor this area is also responsible for answering the telephone for the entire institution, questioning newly arriving youth about their medical, mental health, and physical conditions, and logging activity on the unit. The office in which that person is posted does not provide a sight line into the holding cell, so a youth could be attempting self-harm, or one youth could be harming ahother, and staff would likely not see it while attending to one of their many other duties. Indeed, the staff member has too many duties to provide adequate security. Furthermore, because there is only one holding cell, staff are unable to separate incoming youth in this area to protect them from one another.
At Hickey, there are more cells avallable for youth in the intake area, but the one staff member assigned to this area is also responsible for helping process youth being transported out or the institution and youth arriving at the institution, as well as overseeing the area in which youth on suicide precautions and disciplinary seclusion are confined. While facility management may assign additional staff to monitor youth on suicide precautions, youth on disciplinary seclusion present a heightened suicide risk as well.

- 16 -
In addition, we found that the cells at both facilities had fixtures on which youth could hang themselves. We warned staff at Hickey that the exposed sprinkler heads in the intake/seclusion area cells posed opportunities for youth to attempt suicide. We learned later that youth in two incidents seven weeks apart attempted to hang themselves from these sprinkler heads in this area, thus evidencing that the risks described above are quite real. In a July 21, 2003 report, the Independent Monitor recounted the two attempted suicides by hanging in the seclusion area:
On April 26, a youth tied a sheet around his neck and around a sprinkler head. Staff observed the youth hanging and intervened.
On June 15, another youth tied his bed sheet to sprinkler head. Staff again intervened.
In the report, the Independent Monitor also acknowledged our warnings to the State by stating that the "federal government auditor had also cited the facility for the exposed sprinkler head in May," and warned, "a youth v-,ill lose his life if sprinkler r.eads are :lot covered as required." In addition, at Cheltenham, the beds were constructed in such a way that youth could hang themselves. DJS administrators did inform us before the end of our tours that new beds had been ordered for seclusion cells.
Furthermore, at Cheltenham, youth on heightened suicide precautions are frequently housed in the infirmary, where their opportunities to participate in programs and outdoor activitIes are restricted. At Hickey, youth on suicide precautions are somet~mes housed in the infirmary or seclusion area, where similar restrictions exist. At both facilities, such housing may be brief, but it sometimes lasts for two weeks or longer. Such restrictive housing for lengthy periods of time may exacerbate youth's suicidal and self-mutilation behaviors, especially when they are not receiving consistent mental health services, as discussed above.
4. Inadequate Supervision of Youth on Suicide Precautions and in Seclusion
It is a generally accepted professional standard to require staff conducting perIodic checks of youth on suicide precautions or disciplinary seclusion to document tlleir observations and the times of their checks on youth. At both facilities, we observed

- 17 -
that staff certified on forms that they had conducted checks at a certain time well before that time actually arrived, for example writing at 9:30 a.m. that a check had been done at 10:15 a.m. Because these forms are to be completed when an actual visual check has been conducted, pre-completed forms suggest that staff assigned to these high-risk youth were actually not monitoring them in conformance with safe practices. This falsification of records calls into question the reliability of supervision for youth on such special security status, and suggests that supervision is insufficient to ensure that staff uphold these serious responsibilities. We also observed forms in which staff documented checks that were too far apart to comply with their own policies or accepted standards for suicide precautions. And we found, not unexpectedly given the documentation discrepancies identified above, that staff could not keep track of certain youth on suicide precautions. For example:
One youth at Cheltenham housed in the infirmary after an attempt to overdose on hoarded medicine still managed to acquire glass and cut his arm in a second suicide attempt while allegedly on the highest level of suicide precautions. One of the youth's roommates had to inform custody staff that this youth was lying on the floor of the dorm room bleeding.
At Cheltenham, there were youth listed in the log book to be monitored but they were no longer in the infirmary.
One youth on SUICIoe precautions at Cheltenham was housed in his unit, but the unit staff were unaware that he was supposed to be on precautions.
We observed one youth at Hickey who was moved between units and inadvertently dropped from suicide precautIons.
Despite recent updates to DJS suicide policies, insufficient training, superVISIon, coordination of care and staffing levels contribute to these unsafe circumstances.
5. Lack of Preparedness for Suicide Attempts and Other Self-Harm
Staff must be prepared with adequate skills and appropriate tools to intervene should a youth attempt self-harm.

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Staff lack knowledge and strategies for de-escalating youth engaging in self-harming behaviors. At Cheltenham, even staff assigned to monitor youth on the highest level of suicide precautions have no guidance as to how to respond to youth who make statements indicating they are considering self-harm.

The facilities lacked cut-down tools for staff to use if they encountered youth attempting to hang themselves. One staff member explained she would have to wait for someone to bring scissors from the infirmary, several buildings away, if she found a youth hanging. Staff at both facilities lacked guidance as to how to respond if they found a youth hanging. When we raised this emergent concern, senior DJS administrators promptly ordered cut-down tools for all staff, and were preparing to distribute them and train staf~ by the end of our visits.

C.

INADEQUATE MENTAL HEALTH CARE

Neither Cheltenham nor Hickey provides adequate mental

health care for youth with serious mental health needs.

Deficiencies include: (i) inadequate mental health screeninq,

identification and assessment; (ii) inadequate clinical

-

assessment, treatment planning, and case management;

(iii) inadequate medication management practices;

(iv) inconsjstent and ineffective mental health counseling; and

(v) the failure to place youth in appropriate treatment settings

even when ordered by a court.

1. Inadequate Screening, Identification and Assessment

Generally accepted professional standards require that all youth entering secure facilities receive a reliable, valid and confidential initial screening and assessment to identify emergent suicide risks and psychiatric, medical, substance use, developmental, and learning disorders. Staff must refer youth for needed care. Staff should gather available information such as a youth's previous records from past admissions and glean important information needed to care for and treat the youth. The information must be communicated to appropriate personnel so that a youth's needs are addressed in a timely manner.

At both Cheltenham and Hickey, the initial screening and assessment process fails to achieve its primary goals; the process does not identify youth who need immediate services, refer them for services in a timely manner, screen out youth who should be hospitalized rather than admitted to the institution, or gather and disseminate necessary information to share witll

-19 -
staff caring for the you~h. Mental health staff do not share appropriate information with personnel such as security staff, education staff, case managers or health care staff, all of whom need this information in order to supervise youth safely and meet their needs.
Although good screening forms and policies have been developed, the intake process at Cheltenham is inadequate. We observed staff at Cheltenham asking youth important questions at the same time that they were being strip searched. Further, areas of the intake unit were chaotic, loud and unsettling. The environment and manner of interviewing were not conducive to obtaining important information about recent drug use, treatment by arresting officers, feelings of suicidality and current medical conditions.
During hours when intake officers do not staff the facilities, security staff may be responsible for administering intake questionnaires and providing important information to youth upon admission. These officers have not been trained in these intake functions and do not ask questions or provide information consistently. On certain shifts at Cheltenham, the person asking the intake questions must supervise the holding cell and answer the telephone while administering the intake screening. These circumstances present the risk that staff will lack information needed to protect youth from harm and ensure that youth receive needed services.
Some youth whose serious mental health needs cannot be met at the facilities are admitted anyway. While DJS policy (as well as generally accepted practice) dictates that youth with emergent medical or mental health needs will not be admitted to the facilities, this policy is implemented much more consistently for physiological emergencies such as acute intoxication or observable physical injuries than for mental health crises. Because mental health professionals do not playa role at intake to determine the appropriateness of admitting youth who display serious mental health symptoms upon arrival, youth who are suicidal or otherwise experiencing serious mental illness are admitted despite policy and the facilities' inability to provide the services these youth need. Security staff administering the brief questionnaire given to every youth upon arrival are
insufficiently trained to ask the questions and interpret answers
in order to screen out youth with emergent mental health needs. Thus, some youth in need of psychiatric hospitalization are admitted to the facilities and present special challenges for statt -- challenges the statf is systematically unable to meet.

- 20 -
Our review of records consistently demonstrated that intake screening was not functioning as needed. for example, a 16-yearold youth with a diagnosis of schizophrenia was discharged from a hospital and admitted to Cheltenham. According to the Intake Database face Sheet for this youth, while the youth was in the intake area, he was yelling, "I'm going to hurt myself," and reporting that he was "not mentally stable." Despite this youth's overt sympto~s, the admissions officer conducting the screening answered "No" to questions on the intake screening form asking whether the youth was exhibiting bizarre or unusual behavior, whether the youth was thinking about hurting himself, and whether he showed any sign of current suicide risk. 8 Thus, even though the screening instrument provides that "Yes" answers to any of these questions require refusal of admission and transport to a hospital for immediate care, this youth was admitted to Cheltenham.
At Hickey, a youth with both substance abuse and mental health disorders was admitted with an active prescription for Adderall, a medication for Attention Deficit/Hyperactivity Disorder ("ADHD"). It took five days to restart his medication following his arrival. Despite the fact that he arrived at this facility after failing to complete a court-ordered residential substance abuse treatment program, he was only referred for "Substance Abuse Education" classes rather than the treatment his substance abuse history required. No one administered the mental health screening tool to him, and it was a month before he began treatment.
Furthermore, youth who arrive at the facilities on weekends, when mental health staff are not on site except for emergencies, may not receive mental health screening for several days. Delays in conducting these screenings place youth who are in need of treatment at risk for self-harm and may pose risk to others, since they may be placed into any housing unit without receiving mental health services. Other youth often target youth with mental illness, putting them at risk for physical and emotional abuse. Because custody and health care staff lack training to
Nor was there any indication of malingering by the youth. While we of course acknowledge the possibility that some youth may fabricate symptoms to avoid incarceration, there must be some sort of clinical or documented follow-up before the type of symptoms exhibited here (which, on their surface, appeared to be entirely legitimate) can be dismissed.

- 21 -
recognize signs and symptoms of mental illness and substance abuse, youth may not receive needed services until they are screened or experience crises.
In addition, many youth who might not meet the criteria for hospitalization nonetheless have serious mental health needs that go far beyond the current capacity of the facilities to provide adequate treatment. Both our file review and reports from staff indicate that there are youth at these facilities whose needs go well beyond the facilities' capacity to provide care. At both institutions, security staff complained of the number of youth whose mental health conditions present them with serious challenges in controlling behavior, communicating with the youth, and maintaining safe~y. We heard consistently from staff at both facilities that they wished there were a mental health unit at each facility.
2. Inadequate Clinical Assessment, Treatment Planning, and Case Management
Generally accepted professional standards require timely specialized clinical assessment of those youth with potential mental health needs, development of treatment plans to g~ide youths' care, and implementation of those plans. Mental health providers at Cheltenham and Hickey fail to provide appropriate clinical assessments or treatment plans.
a. Clinical Assessment
Youth who are identified at intake as exhibiting behaviors associated with mental illness and/or substance abuse disorders must receive a timely assessment that includes the gathering of prior assessments, treatment history, and other information in order to confirm a diagnosis and determine an effective course o[ intervention. This process does not occur at Cheltenham or Hickey, and the consequence for youth is haphazard and uncoordinated care.
At neither facility are staff identifying which youth need services most i~~ediately so that their care can be prioritized. As a result, some youth with serious immediate needs slip through the cracks and receive services far too late, or never, due to insufficient staffing levels.
We reviewed files of youth being treated by the psychiatrists. The assessments we reviewed were grossly inadequate. They lacked sufficient information to support a diagnosis or formulate a viable treatment plan. Instead,

- 22 -
medication treatment decisions are based on superficial impressions gained through brief interviews the psychiatrists conduct with the youth. The psychiatrists rarely seek to review prior treatment records or contact community therapists, parents or probation officers for critical developmental and treatment histories. Many files of youth at Cheltenham on psychotropic medications contained no diagnosis at all. These practices are substantial departures from generally accepted standards of care.
Clinical assessments should guide all mental health clinical interventions for a youth, and should identify target symptoms that psychotropic medications are designed to address in tandem with other clinical treatment. The psychiatric assessments at Cheltenham rarely address any clinical intervention other than medication management. They are superficial and barely legible. The benefits of psychotropic medication are lessened without a coordinated therapy approach, as youth rarely have mental disorders that are remedied by medication alone.
The evaluations at Cheltenham conducted by contract mental health staff from Johns Hopkins were more comprehensive and clinically useful. However, the roles of these clinicians in the provision of services at Cheltenham was not effectively coordinated and their involvement appeared marginalized partly based on the assumption that their contract was near termination.
Assessments at Cheltenham rarely identify Post Traumatic Stress Disorder ("PTSDFI ) as a diagnosis, even though a high percentage of youth (60%) score in the "\rJarning" range on the Trauma Scale in the intake mental health screening instrument. Symptoms of this disorder often manifest themselves in increased irritability, difficulty trusting adults, and depression, which, if untreated, could leave youth without the tools to cope with a juvenile detention environment. Similarly, youth in the juvenile justice system with Fetal Alcohol Syndrome experience treatment resistant impulsivity and cognitive problems. No evidence was observed that appropriate interventions are recommended or conducted to help youth \vith these disorders function in this environment.
The clinical assessments and mental status examinations conducted by the contract mental health service provider at Hickey generally fail to gather the requisite developmental and diagnostic information that would justify the interventions that are proposed. Thus, mental health interventions may not be addressing the actual histories and problems of youth.

- 23 -
Some youth require additional assessment over time, to clarify a diagnosis or determine whether a youth is experiencing a cognitive or neuropsychological impairment. At Cheltenham, we found no psychological or cognitive assessments administered after the initial assessments, despite the fact that some of the most troubled youtl} stay at Cheltenham for many months. The following examples are illustrative:
One youth at Cheltenham in May 2003 had a history of depression, substance abuse and migraine headaches, for which he had received medications when detained at the facility only three months before. Despite mental health staff assessments that the youth was becoming increasingly agitated, he did not receive a referral for psychiatric assessment which might have provided for his medications to be restarted.
At Hickey, we encountered a youth who had been admitted to DJS facilities mUltiple times, with a significant history of aggressive and out of control behavior, as well as suicide attempts. His diagnoses include ADHD, chemical dependency, impulse control disorder, mixed anxiety, and depression, with suicidal and homicidal ideation. His arrival at Hickey created an immediate crisis in how to handle his behavior. He was placed on suicide precautions mUltiple times and was restrained on at least three occasions after making a variety of self-harming gestures, including attempting to hang himself on at least one occasion. At one point the psychiatrist attempted to hospitalize this youth, but he was not admitted by the hospital and returned to the facility. The psychiatrist, mental health and health care staff attempted to de-escalate this youth's explosive and violent behavior at various times, but he remained in seclusion for extended periods of time, WIthout a coordinated plan for meeting his needs. During our visit, staff decided to place this youth back on his unit, which engendered further suicidal threats and other crisis behavior. It took more than three weeks after this youth's admission to the facility for staff to complete an admission assessment, and another three weeks for a psychiatric evaluation, which provided no guidance as to new treatment strategies to redirect the uncoordinated, chaot:c care he had been receIVIng. Generally accepted practice for the care of a youth with these needs would include

24 -
development of a orlsis plan that would olearly guide staff in responding to and managing this youth's orises. The laok of suoh a plan was confusing this youth and exacerbating his behavioral disorder.
Another youth at Hiokey had been diagnosed at various times with psychotio symptoms, ADHD, behavioral problems, substance abuse, and destructive behaviors to himself and others. The psychiatrist treated this youth on a complex combination of medications without conducting a psychiatric assessment. Without a determination of his actual needs through assessment, this youth's treatment could not be tailored to meet his needs. This youth continued to experience halluoinations and inability to control his aggressive behavior.
b. Inadequate Treatment Planning and Case Management
Treatment planning, including identifying symptoms and behaviors as targets for intervention and strategies for addressing them, is a critical part of effective treatment for serious mental illness. But treatment plans at both facilities fail to target specific symptoms or articulate meaningful strategies, and provide no mechanism for measuring whether a plan is working. At Hickey, treatment plans rarely identify cooccurring substance abuse disorders as primary goals of treatment, even though effective treatment of mentally ill youth with substance abuse disorders must address these issues hand in hand.
Case managers should com~unicate treatment plans for mentally ill youth to all staff involved in the management of youth in a detention facility, and coordinate their implementation. Although all youth at both facilities are assigned case managers in their residential units, these individuals have no mental health training, and they serve primarily as liaisons between the facility and the probation officer, rather than focusing on coordinating care at the facilities for mentally ill youth. They write "treatment plansN for all youth, but these are generally uniform sets of exercises designed to help youth develop insights about their delinquent acts and their future plans, and are unrelated to mental health treatment. Many case managers were unaware of even the dIagnoses of mentally ill youth on their caseloads.

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Custody staff and others who come in daily contact with youth must have sufficient information about youth's mental health symptoms so that they can understand and respond appropriately when youth manifest them. Communication between mental health staff, health staff, custody staff, teachers, community probation officers and parents regarding the treatment of youth at both Cheltenham and Hickey is manifestly inadeauate. Custody staff do not receive guidance about the behaviors that mentally ill youth display which stem from their mental illnesses. As a result, staff misconstrue psychiatric symptoms as intentional behaviors, and inappropriately apply ineffective discipline to reduce the troubling behavior. Other youth often target these youth and exacerbate their symptoms as well. At Cheltenham, mentally ill youth are transferred between units and to other DJS facilities with minimal attention to critical issues related to their psychiatric status and without consultation with mental health staff.
Youth with receptive language deficits often misunderstand staff orders and end up being punished because staff think they are refusing to comply, when they actually do not understand. Similarly, youth with ADHD frequently have difficulty staying o~ task and following directions. We found no indication that staff were given information so that they could understand the differences of youth with mental health or developmental disabilities or make appropriate modifications in their handling of such youth.
One youth at Cheltenham had an IQ placing him in the borderline range of intellectual functioning. He was consistently disciplined for using profanity and oppositional behavior. There was no indication in his education, mental health or detention files that any staff understood the difficulty he would have understanding verbal requests ar.d following expectations, or what accommodations might be appropriate. Records of another youth at Cheltenham with ADHD showed that he was routinely disciplined for non-compliant behavior despite his inability to follow directions consistently.
Furthermore, contrary to generally accepted professional standards of care, neither Hickey nor Cheltenham staff complete periodic treatment summaries or discharge summaries with enough information to facilitate treatment in future placements. Such failure to communicate the goals and successes and failures of treatments tried at the institutions may compromise future attempts at treatment in other settings.

- 26 -
Insufficient security staffing at Cheltenham also contributes to the lack of adequate mental health care. Mental health workers are unable to use the offices assigned to them within the secure area of the facility for counseling sessions because security staff is not available to monitor the area and they do not feel safe from youth residents. Instead, mental health staff use space outside the secure area, requiring security staff escorts to transport youth.
3. Inadequate Psychotropic Medication Management
Generally accepted professional standards include the use of psychotropic medications to augment a comprehensive mental health treatment plan with the youth's compliance and active participation. Medications prescribed should have a known benefit to treat the symptoms identified, based on a valid diagnosis and understanding of the root causes of the illness, and medication changes should follow documented monitoring of the effects of previous medication choices and reasons for abandoning a previous approach. Generally accepted professional practices require that youth and their parents or guardians t informed about the benefits and risks of medications and give informed consent for their use. 9 Careful monitoring through laboratory tests is necessary to ensure that youth do not experience harmful side effects of many psychotropic medications. At both Hickey and Cheltenham, staff fail to carry out these essential responsibilities.
At Cheltenham, some youth'are placed on medications that are not designed to impact the symptoms they are experiencing. Other youth are not provided with medications to treat the symptoms they have. Psychiatric assessments fail to meet generally accepted professional standards, and at times do not result in any diagnosis; even though the psychiatrist may prescribe several medications, at times the files reflect no conclusion as to what condition is being treated. Medication treatment decisions appear to be based on superficial impressions, gained through brief interviews with the psychiatrist, who has limited input from other sources of information. Many files lack records of

9

Under Maryland law, youth aged 16 or older have the same

capacity as adults to consent to treatment for a mental disorder.

Maryland law also allows treatment staff to inform parents,

guardians, and custodians about treatment needed by minors aged

16 and older. Md. Code Ann., Health-Gen. II § 20-104 (a) (1),

(b) (2003).

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even the most basic of clinical observations, the mental status exam. Such departures from appropriate care not only fail to provide relief to youth, but can cause youth to become resistant to medications and treatment. The psychiatrist appears to function in a clinical vacuum, rarely interacting with other mental health staff, often increasing, adding, or discontinuing medications based only on brief meetings with youth, without the benefit of input from clinicians, custody staff, or teachers who may work with the youth on a daily basis.
One youth at Cheltenham was diagnosed with a schizophrenic disorder and reported experiencing auditory hallucinations. Even though he had a history of taking antipsychotic medications, the psychiatrist did not prescribe a medication to alleviate his hallucinations. There was no notation in the record indicating that the psychiatrist attempted to address these symptoms.
Another youth had ADHD and passive-aggressive personality disorder. The psychiatrist placed him on a mood stabilizer and an antipsychotic agent used for significant behavioral difficulties, which were not appropriate medications for treating the condition that had been diagnosed.
Another youth was prescribed Strattera, a new medication used to treat ADHD. The FDA has not approved this medication at more than 60 mg per dose. Yet this youth was receiving 80 mgs in a single dose per day, rather than 40 mg twice a day. This practice can increase the risk for side effects, such as headache, nausea, vomiting, diarrhea or sleepiness. Physicians sometimes prescribe medications "off-label"
(in a dosage or manner not approved by the FDA), but
physicians must inform youth and their parents of the risks and benefits associated with such choices. There was no such informed consent regarding the use of Strattera in this manner for this youth.
At Hickey, psychotropic medications are frequently prescribed without the benefit of appropriate evaluations or systematic physiological monitoring. Medication decisions appear to be directed at behavior control rather than improved functioning, a practice that represents a substantial departure from generally accepted standards of treatment. For example, youth are often prescribed sleep medications with little justification. These medications are often administered late In

- 28 -
the afternoon, thus unnecessarily sedating youth early, making them less able to participate in evening programs. In addition, the psychiatrist reported that the average time he spends with a youth, even for an initial evaluation, is less than 15 minutes, grossly below the amount of time needed to do an adequate evaluation. The psychiatrist often changes medications with no indication in the medical or mental health chart as to the justification. The records also do not identify target symptoms for the medications. Some examples of questionable medication practices are:
Several youth at Hickey were treated with Neurontin, an anticonvulsant medication, for the purpose of controlling impulsive-aggressive behavior or bipolar disorder. This medication is not designed to treat these disorders. Furthermore, research has not supported its effectiveness for these purposes.
At Hickey, some youth prescribed medications such as Wellbutrin, an antidepressant medication, were maintained at subtherapeutic doses that failed to resolve their symptoms.
Contrary to generally accepted professional practices, at neither faci~ity do medical or mental health staff routinely discuss benefits and risks of medications with the parents or guardians of youth being treated, although some files do indicate such discussions. At Hickey, a staff member obtains consents from both youth and families. While she routinely checks off on a form that she reviewed and explained the goals and potential side effects of the medications, she was unable to articulate knowledge of these matters, and could not produce any reference materials which she would consult. Our records review demonstrated that staff at Cheltenham also fail to fulfill this necessary function.
Furthermore, although nurses dispense psychotropic medications to youth, they do not monitor youth for unwanted side effects of medications and do not dispense medications in a setting where confidential discussions could occur. Nurses we interviewed could not articulate even the most dangerous potential side effects of the medications they were administering, and did not engage in any such discussions with youth during medication distribution. The following examples are illustrative:

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Youth at both Cheltenham and Hickey were prescribed the antidepressant medication Trazodone to aid with sleep. A less common potential side effect of Trazodone is preapism (a painfully persistent erection). There was no evidence in the file that the youth or their parents or guardians had been warned of the potential risks of this medication.
A youth at Cheltenham refused to take his Ritalin, a medi ca t ion cornmonl y used t o t rea t ADHD. \"Jh i Ie the nurse asked him to sign a refusal sheet, the nurse did not question him about why he was refusing, or explain the potential risks of abruptly discontinuing this medication. Such risks include agitation and the possibility of impulsiveness.
Youth at Hickey on neuroleptics, medications used to treat psychotic disorders and sometimes prescribed offlabel for behavioral control, did not receive sufficient information regarding common and serious side effects of these medications. Furthermore, documentation did not evidence explanation to these youth of the reasons why they were being placed on such medications. ,~ong the more dangerous potential side effects of neuroleptics is tardive dyskinesia, a potentially irreversible movement disorder.
The psychiatrist at Hickey frequently prescribes Wellbutrin to treat ADHD, despite the lack of FDA approval to use the medication for this purpose. Many files we reviewed lacked sufficIent discussions with youth and parents or guardians when medications are used off-label.
The psychiatrist at Hickey placed a youth on medications for impulsive-aggressive behavior, ADHD and sleep disturbance. This youth had a history of oppositIonal behavior, altercations with other youth on his unit and needing frequent redirection by staff. The youth frequently refused all medications. There is no documentation that the psychiatrist discussed with him the potential physiological and behavioral consequences of inconsistent medication compliance.
Psychiatrists at both facilities also fail to order and perform needed follow-up regarding appropriate laboratory work to monitor the emergence of problematic side effects. For example:

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At Cheltenham, youth on Imipramine, a tricyclic antidepressant medication which can cause cardiac arrhythmia including cardiac arrest, did not have electrocardibgrams to ensure that such symptoms were not present.
Youth on Depakote, a mood stabilizing medication that can affect the white blood cell and platelet counts and cause liver damage, do not routinely receive necessary liver and blood tests.
Youth on Lithium, a mood stabilizing medication that can cause kidney damage and alter thyroid functioning, do not receive kidney function and thyroid tests as :Jeeded.
Medications such as Guanfacine and Clonidine used to treat ADHD, may lower blood pressure. Youth are at risk for fainting when they stand up if blood pressure and pulse are not monitored. None of the psychiatric files we reviewed contained evidence of blood pressure monitoring (e.g., blood pressure and pulse measurements) .
Furthermore, many of the medications administered to youth require that a certain level be maintained for them to be effective. The facilities' failure to test blood levels increases the possibility that the medication will be ineffective or potentially toxic.
Youth at Cheltenham are discharged from the facility without medication or prescriptions, thus making it likely that youth leaving the facility to anywhere other than an institution will experience disruption in those medicines that require consistent intake.
4. Inadequate Mental Health Counseling and Other Rehabilitative Services
GeneraJly accepted professional standards require that mental health counseling be provided frequently and consistently enough to provide meaningful interventions for youth. Treatment should utilize approaches that are generally accepted as effective. Youth with mental illness shculd receive treatment in settings appropriate to their needs.

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At Cheltenham, mental health counseling is inadequate to the needs of mentally ill youth in both frequency and content. The limited counseling records that exist do not evidence consistent use of effective treatment strategies. At Hickey, despite some caring, dedicated counselors, interventions are not structured toward specific goals and do not consistently involve approaches accepted as effective. Even for youth who are regularly placed on suicide precautions, counseling frequently fails to identify strategies to deal with problems of self-regulation or depression. For others, mental health staff failed to utilize strategies to deal with identified anxiety, hyperactivity or trauma. Many youth are prescribed psychotropic medications to manage their behavior, but receive no counseling whatsoever. The school lacks any mental health professionals to provide services directed at the goals and objectives set forth in the Individualized Education Programs (IEPs) of youth with such needs. A representative of the contract mental health provider for the facility reported that these mental health staff do not address special education-related needs in their treatment.
For example:
A 15-year-old youth admitted to Cheltenham with a documented history of ADHD and bi-polar disorder received only one crisis intervention visit from a mental health counselor during three weeks in which he repeatedly angered easily and got into fights, resulting in his being disciplined. The only intervention this clinician prescribed was to see the therapist assigned to his unit on an "as needed basis.H Despite this youth's inability to control his behavior, no additional counseling was reflected in his chart.
A youth at Cheltenham with current prescriptions for Depakote and Risperdal required surgery for an undescended testicle while detained in April 2003. Such surgery will likely result in a variety of mental health concerns, including anxiety and being at risk for harassment by peers. Thus it would be expected that both the psychiatrist and a mental health counselor would provide services to this youth following his return from the hospital. The youth's chart reflects only one mental health visit, charted In his medical records, in which the youth appeared to be quite concerned about his future ability to father children, and the possibility that the doctors had

- 32 -
found cancer. Although the social worker wrOLe that the youth should receive continued mental health follow-up and supportive intervention, his records reflect no further mental health counseling.
The psychiatrist at Hickey ordered Cognitive Behavioral Therapy (CBT) for a youth with impulse control disorder. Nothing in the youth's records suggests that the youth received such treatment.
A youth with conduct disorder as well as potential ADHD and substance abuse was prescribed three medications by the psychiatrist, who also ordered individual therapy twice a week and group therapy twice a week. Instead, this youth received only one individual therapy session everyone to two weeks.
A youth at Hickey with ADHD and history of substance abuse since age ten, as well as prenatal cocaine and alcohol exposure, received no substance abuse treatment.
Mental health staff must keep records in a manner that allows futcre providers to track treatment previously provided. The lack of adequate record keeping could place youth at risk in circumstances requiring prompt intervention, particularly when a youth threatens self-harm. Records of prior interventions are important in order to guide staff about effective ways to intervene in crises. Counseling records at Hickey lack sufficient specificity, while records at Cheltenham are disorganized and at times nonexistent.
At both facilities, group treatment sessions are often cancelled. Security staff are insufficient in numbers to provide needed supervision during group sessions to ensure a safe and productive atmosphere. At neither facility do counseling staff routinely involve youth's families in their treatment interventions, thus reducing the effectiveness of any attempt at rehabilitation for youth who plan to return to their families following detention. At Cheltenham, confidentiality in group settings is often compromised. This circumstance leaves youth unwilling to communicate sensitive personal concerns where professional and custody staff cannot assure protection from teasing and recrimination. Furthermore, some youth with mental illness are expected to participate in groups that are inappropriate for their illnesses.

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Youth with developmental disabilities are not receiving the care they need at the facilities. For example, one developmentally disabled youth whose testing indicates that the youth's performance "falls within 1 st percentile and is within the Mentally Deficient range of intellectual functioning U frequently got in fights on his unit. This youth was consistently disciplined for engaging in behaviors which were largely a function of his developmental and cognitive deficits. His treatment plan includes no guidance for custody staff on what strategies can help this youth function more successfully with his peers and staff. While there was useful information available through his school records that. could benefit both his mental health care and his care on the living unit, there is no indication that the information was shared outside the school.
Generally accepted professional practices require that facilities confining youth provide opportunities for rehabilitation that include effective behavior management systems. Effective behavior management systems generally involve incentive-based programs for promoting appropriate behavior throughout the day, and clearly defined guidelines that are consistently applied across each instituLion. For youth idenLified as having behavioral health problems, behavior management programs need to be coordinated with a treatment plan. Appropriate rehabilitative services for youth confined in juvenile justice facilities include programs that address family conflict, substance abuse, anger management, gang affiliation and other issues that involve them in the juvenile justice system. At Hickey and Cheltenham, however, the behavior management systems have little or no input from the mental health staff. Thus, goals of custody staff and mental health treatment providers are not coordinated, and youth do not benefit from mental health treatment gains within the unit structure. Moreover, both facilities lack an effective behavior management system that is consistently applied and that provides approprlate opportunities for youth to regulate their behavior.
5. Failure to place Youth in Court-Ordered Treatment
Once a court has ordered that a youth be placed in a suitable facility for treatment and rehabilitation, it is incumbent upon the State to find timely placements for such youth. In the meantime, these facilities are left with many youth whose mental health needs cannot be met by the resources available at the facllity. The frustration and anger youth develop from lack of appropriate treatment makes them difficult to manage, and leaves them less receptive to future interventions. Youth may be detained at Cheltenham and Hickey

- 34 -
awaiting placement into other DJS or private treatment progra~s for six months or longer. The State must find alternatives to meet the mental health needs of these youth whom the courts have ordered DJS to serve.
D. INADEQUATE MEDICAL CARE
Facilities must provide confined juveniles with medical care consistent with generally accepted professional practices. The programs for providing medical care at Cheltenham and Hickey are inadequat~ and substantially depart from generally accepted professional standards in the following areas: (i) access to medical treatment; (ii) health assessments; (iii) treatment of chronic conditions and physical injuries; (iv) medication administration practices; and (v) dental care.
1. Inadequate Access to Medical Treatment
Youth at Cheltenham are not provided timely access to medical care. The following examples are illustrative:
A youth requested sick calIon July 25, 2002. He was seen on July 26 and complained of a sore throat lasting two weeks. He was referred to the physician, but not seen until July 29. By that time, his condition had deteriorated and the youth was hospitalized with a peritonsillar abscess, a serious deep tissue throat infection. Timely attention by a medical practitioner and treatment with antibiotics would likely have prevented his hospitalization.
A youth with severe asthma was admitted to Cheltenham in May 2003. At the time of admission, the youth's respiratory rate was 20, indicating acute asthma and the need for further assessment by the physician. Nothing further was done to evaluate or treat his asthma at the time of his admission. Untreated asthma symptoms can result in respiratory crisis.
At Cheltenham we encountered a youth in disciplinary seclusion who had been in a fight with another youth. His tooth had been left very loose as a result of the fight, but he had not received medical care for this injury when we spoke with him. The dentist was due to be at the facility the next day for his weekly visit, so a senior administrator who \yas accompanying us Oll our tour instructed a nurse to ensure that the youth got to see the dentist the following day. We checked

- 35 -
back with this youth mid-afternoon the following day, and found that no one had spoken with him further regarding his tooth. We were able to intervene just in time to catch the dentist who was packing up to leave for the day. The dentist had received no word that a youth housed just down the hall needed his care.
For juvenile facilities to provide adequate medical care, generally accepted professional practices require that there be sufficient medical staff. Our investigation revealed that there was insufficient medical staff at both Cheltenham and Hickey to provide an adequate health program, given the needs of the youth housed there.
At the time of our tours, at Cheltenham there was one nurse supervisor and four nurses during the day shift, three nurses during the evening shift, and one nurse during the overnight shift. Nurse staffing at Hickey was virtually identical, although the facility housed more youth. Our observations, document review, and interviews with staff and youth confirmed that these levels of medical staffing contribute to the medical care deficiencies described in this section. In addition to a shortage of nursing staff, physicians are not on-site for sufficient hours. At Cheltenham at the time of our tours, a physician was on-site for only three and a half days each week, which was largely spent on initial examinations of newly admitted youth. This schedule and staffing pattern left physicians little ti~e to devote to the care and treatment of acute and chronically ill juveniles. The shortages also explain why juveniles at both Cheltenham and Hickey complained that requests for sick call are unanswered for days.
Insufficient security staffing similarly impacts the delivery of medical care for youth at Cheltenham and Hickey. A youth at Cheltenham sustained a shoulder separation during an April 2003 incident. Although the youth required x-rays, he \vas not transported to the hospital for more than 24 hours because of security staff shortages. Medical staff at Hickey reported that youth often miss outside appointments that are very difficult to reschedule, such as optical and dental appointments, due to lack of security staff to transport youth. In the satellite medical office at Hickey, the nurse reported that there was insufficient security staff to supervise youth and also provide adequate security for her. As a result of this lack of security, the nurse conducts sick call through a window from behind a locked door, significantly limiting her clinical interaction with youth.

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2. Inadequate Health Assessment
Generally accepted professional standards require that a standardized health evaluation be performed upon admission. This evaluation is necessary to ensure that youth are maintained on necessary medications, that significant health problems are not overlooked, and that tuberculosis skin tests and laboratory screening to detect co~municable diseases are performed. Significant health problems should be identified on a "problem 1 i s t /I sot hat a p pro p ria t e t rea t men tan d foIl OVJ - uP car e i s provided. Medical records from prior placements should be obtained promptly for appropriate assessment, and current medical records must be maintained adequately and updated in a timely manner. The failure to treat an unrecognized health problem can result in serious medical harm. Both facilities fail to conduct adequate initial health assessments and document the health records adequately.
At Cheltenham, we found several examples of the failure to continue required medications on admission, the adverse health consequences of which can be severe. For example, a youth with a history of seizures \\'as admitted on March 28, 2003. The nurse noted that he was being treated with Tegratol, an anti-seizure medication. Nothing was done to continue the youth on this medication, even though the medication was available on-site. On March 30, the youth suffered a seizure. Notably, his problem list, where all significant health problems should have been listed, and his physical examination form were left blank, even though his condition was known to the facility.
Our file review at both Cheltenham and Hickey revea~ed that important medical information, such as medical problems and treatment provided, is not documented so as to be readily identifiable, representing a substantial departure from generally accepted professional practices. For example, a Cheltenham youth's February 2003 initial n;edical assessment indicated "none" for allergies, alth6ugh a prior chart entry from the previous July reported allergies to penicillin and aspirin. Youth with histories of scoliosis (curvature of the spine), high blood pressure, and prior positive tuberculosis sk:n tests reported their histories to medical staff, but these medical problems were not documented on the youths' problem lists so that they would be readily observed by medical care providers. The failure to document youths' medical problems and courses of treatment clearly in their medical files impedes medical practitioners from providing adequate care, and places youth at risk of receiving medical treatment which could actually harm them.

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Medical staff at Hickey and Cheltenham fail to perform needed follow-up regarding abnormal lab results. Urine tests are a standard screening test given to youth as part of the initial health assessment. Abnormal results may be indicia of serious medical conditions. The presence of protein or blood in the urine can indicate chronic kidney disease; the presence of white blood cells and nitrate in the urine may indicate bladder or kidney infection. Our file review revealed that staff received such abnormal laboratory results for youth at both facilities, yet failed to take appropriate steps as a result of this information, thus placing youth at risk of harm.
Generally accepted professional standards also require that the immunization status of youth be assessed and immunizations be brought up to date. Neither Cheltenham nor Hickey has an organized immunization program. The facilities do conduct routine antibody testing for Hepatitis B for all admissions; however, youth whose antibody tests do not show that they have developed immunity should be vaccinated. Our review revealed youth at both facilities who had no immunity, yet no vaccine \.-Jas ordered for them. Youth should also be screened to determine whether they have active Hepatitis B or C infections. ~ickey staff fail to determine whether youth have active infections of these contagious diseases.
Similarly, youth who have not had chickenpox are at risk for more serious complications from the disease, including chickenpox pneumonia and chickenpox encephalitis, which can result in mental retardation and seizures, if they contract chickenpox when they are older. Youth who have not had the condition should be vaccinated. Youth at both Cheltenham and Hickey reported never having chickenpox but were not vaccinated.
Common sense dictates that screening for active infectious diseases, such as tuberculosis, be a part of any correctional setting. Yet when tuberculosis screening tests are ordered at Hickey, there often is no follow-up by nursing staff to determine whether a youth tested positive. This failure to track and appropriately treat youth who need care places both staff and youth at risk of contagion from untreated youth.
Finally, medical staff fail to take sufficient steps to obtain complete medical records from prior facility placements, even those within DJS. At Hickey, a nurse tracks whether medical records are received, but does not assess the completeness of the records. For example, a physical examination record may be received without laboratory results, but no follow-up would be

- 38 -
done to acquire these results. Nurses apparently assume that tuberculosis screening tests are conducted at prior placements, but often this has not occurred and there is no documentation of tuberculosis screenlng from the previous facility.
3. Inadequate Medical Treatment of Chronic Conditions and Physical Injuries
Generally accepted professional standards require that appropriate treatment be provided for youth with chronic medical conditions. A common, yet serious, medical condition among youth is asthma. At Cheltenham and Hickey, staff fail to provide critical aspects of asthma care consistently with current standards. Health staff only see youth for asthma symptoms, rather than at regular intervals to monitor the illness. Staff do not review how youth are responding to treatment, assess airflow using a peak flow meter, review side effects of medications, provide patient education, and adjust the management of the disease to achieve the least disability. Peak flow meters are available at the facilities, but rarely used. Certain types of asthma inhalers are prescribed for use when patients find themselves urgently short of breath. The documented use of such inhalers is necessary to manage this serious medical condition, as the use of inhalers for urgent relief more than twice a week is an indication that providers should consider intensification of the daily treatment regimen. Although custody staff confirmed that they store asthma inhalers, which youth use on the housing units, the medical charts we reviewed contained no documentation of administration of asthma inhalers on the housing units.
Youth with other chronic illnesses receive inadequate care at both facilities. For example, two youth at Hickey had sickle cell anemia. Generally accepted professional standards call for daily folic acid supplements to support the bone marrow's rapid production of red blood cells in sickle cell patients. Neither youth was prescribed these preventative measures. In another example, a youth who tested positive for Hepatitis C was not provided a vaccine for Hepatitis A. Such vaccination is a standard treatment for youth with Hepatitis C, since they are more susceptible to liver infection from other hepatitis strains. Our investigation also revealed a number of youth with diabetes at Cheltenham and Hickey. Generally accepted standards of care for this serious disease call for routine testing to monitor diabetics for eye and kidney complications, but records contained no indication that these tests were ordered. A special urine test to detect small amounts of protein in the urine is

- 39 -
appropriate for youth who have had diabetes for 3 years or more, but records contained no indication that this test is ordered. Additiona~ly, at Cheltenham physicians fail to order appropriate diets for diabetics.
4. Inadequate Medication Administration Practices
Prescribed medications are not administered appropriately at either facility. Our review of medication administ~ation records revealed many significant gaps in medication that were unexplained. The following examples are illustrative:
A youth did not receive his Paxil, an anti-anxiety medication, and Risperdal, an antipsychotic medication, on two dates in June 2003.
A youth was prescribed Keflex, an antibiotic, ~hree times a day, but missed two doses every day.
A youth who had his jaw wired shut was prescribed Ensure, a liquid protein supplement for nourishment. Over a three week period, he received only 31 of 100 cans ordered.
A youth was prescribed Risperdal to help control his anger, and reported that the medication was he 1p f u 1 . [fJ hen hew a sin t e r vie VJ e don J un e 1 0 , 2003, he reported that his medication had been stopped without explanation at the end of May. He had made a sick call request to discuss this medication interruption and was still waiting to see the medical staff. A review of his chart revealed that the medication had been stopped because both nursing and mental health staff had failed to flag it for renewal and the prescription had expired unintentionally.
A youth's medical chart revealed that he suffered from chronic inflammatory bowel disease for which he was prescribed mineral oil daily. On two occasions his mineral oil prescription expired without renewal and he had to pursue sick call requests to continue this medication.

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A youth with high blood pressure was treated with the medication Atenolol, a beta blocker commonly used to treat this condition. After his admission to Hickey, his medication was stopped for two days because staff failed to renew it. The sudden cessation of Atenolol may cause chest pain or heart attack.
These practices represent substantial departures from generally accepted standards of care.
5. Inadequate Dental Care
In keeping with generally accepted practices, services to restore and maintain dental health must be available to youth. See Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980). Both Cheltenham and Hickey fail to provide adequate dental care.
At Cheltenham, our review of dental records revealed an absence of routine dental examination on admission, and a lack of restorative and preventative care. At the time of our tours, Cheltenham had a dentist on-site once a week for 6-8 hours. There was no dental assistant or dental hygienist. The dentist provides only acute care when youth are referred to him by sick call request. According to the dentist, services are basically limited to emergencies. No preventative services, such as cleaning, scaling, or topical fluoride application, are provided. Given the length of stay for some youth at Cheltenham, the failure to provide preventative care ~alls outside generally accepted professional standards.
Hickey has no on-site dental staff, and preventative services are not provided. Dental services are provided by a community dentist, who limits the number of appointments per week. Our review of dental referrals, medical files, and interviews with staff revealed significant delays in necessary dental treatment for youth in pain and with serious dental needs. The failure to treat dental conditions such as cavities can result in need for more extensive root canal therapy or tooth loss. For example:
A youth submitted sick call requests on May 20 and 21, 2003 for dental pain. He was not scheduled to be seen by the dentist llr:til July 9, the next available appointment.

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A youth requested dental care for pain on May I, 2003, but was not referred to the dentist. On May 15, he complained of severe pain, and only then was he seen by the dentist.
A youth had a dental exam on February 13, 2003, which showed five cavities. At the time of our April 2003 tour, he had received no treatment for these cavities.
A youth was suffering from a dental abscess on May 22, 2003 and was treated with Amoxici11in, an antibiotic. At the time of our June 2003 tour, the youth had not seen the dentist and no appointment was scheduled.
Hickey also fails to provide dental care for chronic conditions. For example, we interviewed a youth at Hickey with severe disabling displacement of his teeth (the youth had numerous teeth growing out of his gums above and perpendicular to his front teeth) but he was not referred for orthodontic evaluation. A nursing assessment at intake described this youth's mouth as "normal," indicating that this nurse had received inadequate training in dental screening.
E. INADEQUATE EDUCATION INSTRUCTION OF YOUTH WITH DISABILITIES
With regard to the education provided to confined youth, the facilities violate the statutory rights of youth with disabilities by failIng to provide them with adequate special education instruction and resources. In states that accept federal funds for the education of children with disabilities, as does Maryland, the req~irements of the IDEA apply to juvenile facilities. See 20 U.S.C. § 1412(a) (1) (AJ; 34 C.F.R. § 300.2(b) (1) (iv). The deficiencies we observed stem from: (i) inadequate assessments of youth who are eligible for special educa t i on services; (i i) inadequate ly deve loped I ndi vi dua 1i zed Education Programs ("IEPs"); (iii) lack of related services; (iv) lack of adequate instruction for youth with disabilities; and (v) inadequate vocational instruction for youth with disabilities.
1. Inadequate Assessment
Pursuant to the IDEA, staff at Cheltenham and Hickey are responsible for screening, evaluating and identifying youth with qualifying disabilities that would entitle them to special education services. Prevalence data from national studies

- 42 -
suggests that between 20% and 60% of youth in juvenile justice facilities have an educational disability.lo At the time of our tour only 15% of youth at Cheltenham were identified as having an educational disability and only one youth was identified with a qualifying disability of other health impaired (OHI). The OHI designation is used for children with ADHD, a commonly identified qualifying disability. Indeed, observations by our psychiatrist and psychologist indicate that the facility had not identified a number of youth with this condition who likely were entitled to special education services.
At Hickey, we found that a number of youth had significant mental health diagnoses, such as psychotic disorders, major depression and schizophrenia, yet many of these children did not have IEPs. Assessments failed to include intelligence and achievement testing. At Cheltenham, we found that the special education coordinator was new to this position and plans for assessing youth were still in the formative stages.
One 17-year old youth at Cheltenham diagnosed with schizophrenic disorder experienced auditory hallucinations. Despite these severe symptoms that would clearly interfere with his ability to learn, he was not identified or assessed for special education services.
Another 17 year-old youth at Cheltenham, who had been placed there at least four times, who had a history of prior psychiatric hospitalizations, and who had been identified with a learning disability, emotional disorder, and behavior disorder, was not receiving adequate special education services. Despite receiving some special education services, his most recent testing found he had only a first grade level in reading and spelling, and a third grade level in math. In his April 2003 progress report, his teacher noted that he was not attending class and that when he did, he failed to do the work. He received failing grades
J a
Robert B. Rutherford, et Ql.., Youth with disabilities in the corrections system: Prevalence rates and identification issues (2002) .

- 43 -
in all subjects except keyboarding. Such lack of success requires that additional interventions be attempted for such a youth, but no such interventions were put into place.
Another 17-year-old youth at Cheltenham had been diagnosed with a mood disorder, anxiety disorder, ADHD, and cannabis dependency. He had been receiving special education services since the fourth grade for behavioral problems. However, a recent court evaluation reported that the youth was at only a third grade reading level, which may indicate learning disability. The facility did no IQ testing or further attempt any new educational interventions.
One 17-year-old youth at Hickey with polysubstance abuse and conduct disorder tested at seven to eight years below grade level in reading, math and spelling. Such lack of educational achievement would indicate an underlying learning disability. This youth received no special education services.
A 14-year-old youth at Hickey with a verbal IQ of 67 was receiving limited special education services for an emotional disability. Despite the fact that the emotional disability was the condition that made him eligible for special education services, the one hour per week of mental health treatment that the youth received was provided by the facility's contract mental health provider, which was neither monitored by the school nor coordinated with his educational needs. In addition, the youth's testing, which showed him to be seven years behind in reading, indicates a likely learning disability, which was not being assessed or addressed at all.
An I8-year old youth at Hickey with impulse control disorder and likely ADHD had notes on his most recent IEP indicating that he was rarely on task, often failed to complete work, and was argumentative with peers and adults. Despite this youth's testing at five to seven years below grade level in spelling and math, and reports that current interventions wer~ ineffective at
improving his school performance, the IEP team
determined that he did not requIre any further evaluation.

- 44 -
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against persons with a disability by any agency receiving federal funds. The protections of this law, which apply to state prisons, see Pennsvlvania Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998) (holding that the terms of Title II of the Americans with Disabilities Act, the relevant provisions of which are identical to Section 504, are applicable to the states), are extended to any person who: (i) has a physical or mental impairment that substantially limits one or more of such person's major life activities, (ii) has ~ record of such impairment, or (iii) is regarded as having such an impairment. The law requires that an accommodation plan be developed for students who qualify for services under Section 504. Our investigation revealed no assessment measures and, consequently, no accommodation plans for youth who would not be covered under the IDEA, but who may be eligible for accommodations under Section 504.
2. Inadequate Individualized Education Programs
The IDEA describes the required components of an rEP, including that each rEP must include measurable goals. 34 C. F.R. § 300.347 (a) (2) (2004). Many of the IEPs VJe reviev/ed at Hickey lacked measurable goals and obJectives. For example, one rEP objective stated, "[tJhe student will display empathy towards peers and adults with 80% criteria." Other IEP objectives included criteria stated as percentages, but did not describe the quanta being measured. For example, an 80% criteria could refer to 80% of opportunities during free time, 80% of observed interactions during class time, or 80% of interactions during lunch over three consecutive days. Without more concretely stated measures, "an 80% criteria" is meaningless. Indeed, the criteria, even without a required percentage, would be incapable of measurement. The rEP goals and objectives we reviewed lac~ed realistic and measurable terms, based on individual needs.
At Hickey, IEPs include recommendations for mental health treatment, but the school has no mental health professionals. A representative of the contract mental health services provider reported that they do not routinely coordinate mental health treatment with youths' rEP goals and objectives, even where youths' eligibility for special education is based on emotional disability.

- 45 -
3. Lack of Related Services
The IDEA req~ires that students with disabilities be provided with related services to address their specific needs. Our investigation revealed that students at Cheltenha~ whose IEPs indicated that they should receive speech and language therapy once a week were not receiving these services because Cheltenham had not contracted with a speech and language therapist for some time. Successful rehabilitation of mentally ill youth must involve coordinated efforts of mental health and education professionals, and this does not occur at either facility.
Educational mastery, for many detained youth, is the cornerstone of their rehabilitation. Many youth at Cheltenham and Hickey have mental illnesses which impact their educational performance, but do not receive appropriate special education related services to address their educational deficits. In general, mentally i~l youth often have poor school attendance and performance due to shame over their lack of skills or histories of failure and conflict in school settings. Therefore, coordination between mental health professionals and educators is essential for youth at both facilities. Such coordination does not occur at Cheltenham or Hickey.
At Hickey, although the majority of youth served by the contract mental health provider also receive special education services, the mental health staff rarely attend IEP meetings or provide information regarding management of the youth's mental illness and treatment goals. The school frequently lists mental health services among the interventions a youth will receive when officials write IEPs, even though the school does not provide these services. School officials believe that the youth are receiving mental health services somewhere in the institution, but school officials do not ensure that such care is provided, or that it coordinates with the other IEP goals and objectives. Since school behavior is often the target of medication management, it is a generally accepted professional practice for psychiatrists to work with educators in the treatment of youth. The lack of this important collaboration undermines the rehabilitative function that the youth's detention is supposed to achieve.
4. Lack of Adequate Instruction for Youth with Disabilities
The IDEA requires that students with disabilities be provided an appropriate public education. Students with

- 46 -
disabilities at Hickey are served in the general education classrooms under an inclusion model. These students receive assistance from special education teachers in the classroom. Student education records revealed a number of students who were reading far below grade level. For example, a 17-year-old youth was reading at a 2.8 grade level. A 16-year-old youth was reading at a 2.2 grade level. Students like these, with profound reading deficits, require more individualized instruction than what was being delivered at Hickey.
Students with disabilities at both Cheltenham and Hickev are also denied appropriate education when they are placed in " restricted settings. Our illvestigation revealed that youth in the segregation units at both facilities received no academic instruction. Youth housed in the infirmary for medical reasons or to provide them with protective custody, received extremely limited academic instruction. At Cheltenham, youth in the infirmary reported that teachers of four subject matters each spent approximately one-half hour per day with them, and that most of the time was occupied watching movies. During our tour, we saw youth watching "The Matrix U during regular school hours. Youth on some units at Cheltenham attend school only three hours a day. This level of educational services for youth with disabilities is a substantial departure from generally accepted practices.
5. Inadequate Vocational Education for Youth with Disabilities
The IDEA also requires that students' IEPs emphasize special education and related services designed to meet their unique needs and prepare them for employment and independent living. IEPs for students at both Cheltenham and Hickey lack consideration of career planning, job training or other employment goals.
Vocational classes are offered at Hickey through the Alternative Learning Center, a facility at which courses are offered in auto mechanics, printing, agriculture and barbering. While providing these courses is laudable, our observations revealed that the quality of instruction and materials was inadequate and that students were not engaged in the lessons. In the auto mechanics class we observed, the instructor was seated at his desk while four students watched a video and two students slept. The print shop equipment is outdated and in need of repaIr. While we were told that most of the printing work lS done on computer, the students we observed were using the

- 47 -

computers for playing games because the system was down. Our observations of the agriculture class revealed two students moving dirt and a plant around a turtle, two students studying a catalog, and a fifth student who told us he vias "just chilling out." Cheltenham offers no vocational or career education courses.

F.

INADEQUATE FIRE SAFETY

Inadequate fire safety precautions at both Cheltenham and Hickey place residents at ~n extremely serious risk of harm. Indeed, in October 2000, State inspectors noted in a report that "[e]xisting doors and locks are damaged beyond repair, [and] cannot be opened in case of fire for ventilation. Most of the locks are not secure to doors." The report goes on to note under "Consequences": "Possible loss of life in case of fire, or other emergencies that may occur."ll Because these buildings were projected to be demolished eventually, the State did not provide funding for these important safety repairs.!2 This report evidences that the State knew about both the safety and security risks involved in not repairing door locking mechanisms in these cottages; however, the State did not repair them.

Additionally, a number of residential cottages at Cheltenham lacked appropriate fire and smoke suppression systems. Hickey has a campus-wide automated fire alarm system, but the failure to maintain that system places youth at risk of serious harm in the event of a fire emergency. In the March 2003 inspection of the fire alarm system, numerous deficiencies that are easily remedied but nonetheless serious and could result in the loss of life were identified: fire control panels were not functional; ba~teries needed to be replaced; heat and smoke detectors did not work; and many sprinklers were painted over which caused them to be clogged and unusable. In view of the broad range of serious defects identified by the inspectors in both the 2002 and 2003 inspections, it is apparent that the fire alarm system is not kept functioning at an acceptable level on a regular basis. Unless these conditions are remedied, there is a grave risk that any fire at the facilities will lead to a significant InjurIes, including deaths.

11

Project Justification Form, October 4, 2000, submitted by

Maryland Department of Juvenile Justice to Maryland Department of

General Services, October 24, 2000.

12

We understand that a number of these cottages are not

currently used to house youth.

- 48 -
IV. REMED IAL MEASURES
In order to rectify the identified deficiencies and protect the constitutional and statutory rights of youth confined at Cheltenham and Hickey, these facilities should implement, at a minimum, the following remedial measures:
1. Ensure that youth are adequately protected from physical violence committed by staff and other youth, and sexual misconduct by staff.
2. Ensure that there is sufficient, adequately trained staff to safely supervise youth.
3. Ensure that staff are adequately trained in safe restraint practices, that only safe methods of restraint are used, and that restraints are used only in appropriate circumstances.
4. Ensure that staff adequately and proreptly report incidents.
5. Ensure that personnel officials engage in appropriate background and reference checks for all staff.
6. Develop and implement an adequate classification system to place youth appropriately and safely.
7. Ensure that adequate security systems, including individual room door locks, are maintained.
8. Develop and implement policies and procedures to ensure the appropriate use of isolation, to include adequate due process protections.
9. Ensure that there is an adequate and appropriate behavior modification system in place.
10. Ensure that youth have adequate access to restroom facilities.
11. Develop and implement adequate suicide prevention policies to identify and assess, safely house and supervise, and adequately treat suicidal youth.
12. Provide staff with adequate training and equipment to identify and supervise youth at risk for suicide, and to intervene effectively in the event of a suicide attempt.

- 49 -
13. Provide adequate mental health treatment to include appropriate mental health screening, identification and assessment, adequate specialized mental health assessment, treatment planning, case management, psychiatric services and counseling, and provide for placement outside Cheltenham and Hickey for those youth whose mental health needs cannot be met adequately at the facilities.
14. Ensure that mentally ill youth are not unfairly disciplined for behavior resulting from their disabilities. Ensure that appropriate acco~~odations are made so that mentally i l l youth can participate in programs and services at the facilities.
15. Develop and implement appropriate rehabilitative and drug treatment programs, including opportunity to communicate with family members.
16. Ensure that youth are timely placed in appropriate treatment settings as ordered by cour~s.
17. Develop and implement policies, procedures and practices for appropriate discharge planning.
18. Provide youth with adequate access to medical treatment, including youth with acute, emergent and chronic medical conditions.
19. Ensure that adequate health assessments are conducted and documented for all youth admitted to the facilities.
20. Develop and implement policies, procedures and practices to ensure that adequate medication administration practices are followed.
21. Develop and implement policies, procedures and practices to ensure adequate documentation of youth medical records, adequate laboratory analyses, appropriate i~~unizations, and appropriate screening for communicable diseases.
22. Provide adequate dental care.
23. Ensure timely and appropriate assessment and identification of students with disabilities for special education services.
24. Provide youth with disabilities adequate special education instruction.

- 50 -

25. Develop and implement adequate individualized education programs; provide necessary related services; and provide vocational education for youth with disabilities.

26. Develop and implement appropriate Section 504 plans for all eligible youth.

27. Implement adequate fire safety measures.

During the exit interviews at our on-site tours, we provided

State officials with preliminary observations made by our expert

consultants. State officials and facility staff reacted

positively and constructively to the. observations and

recommendations for improvements. The collaborative approach the

parties have taken thus far has been productive. We hope to be

able to continue working with the State in an amicable and

.

cooperative fashion to resolve deficiencies previously noted. In

addition, due to the State's cooperation in this matter and State

officials' expressed desire to improve conditions, we will send,

under separate cover, reports from our consultants that provide

their more detailed findings and recommendations to address the

inadequacies they found in the operation of the facilities.

Although t~e expert consultants' evaluations and work do not

necessarily reflect the official conclusions of the Department of

Justice, the observations, analyses, and recommendations of our

consultants provide further elaboration of the issues discussed

above, and offer practical assistance in addressing them.

In the unexpected event that the parties are unable to reach a resolution regarding our concerns, we are obligated to advise you that 49 days after receipt of this letter, the Attorney General may institute a lawsuit pursuant to CRIFA to correct the noted deficiencies. 42 u.s.c. § 1997b(a) (1). }"ccordingly, ive will soon contact State officials to discuss in more detail the measures that must be taken to address the deficiencies identified herein.

Sincerel v,

R. Alexander Acosta Assistant Attorney General

- 51 -
cc: The Honorable J. Joseph Curran, Jr. Attorney General State of Maryland
Kenneth C. Montague, Jr. Secretary, Department of Juvenile Services State of Maryland
Martin Fahey, Superintendent Cheltenham Youth Facility
Leo Hawkins, Facility Administrator Charles H. Hickey, Jr. School
The Honorable Thomas M. DiBiagio United States Attorney District of Maryland
The Honorable Roderick R. Paige Secretary United States Department of Education
Mr. Robert H. Pasternack Assistant Secretary Office of Special Education and Rehabilitative Services United States Department of Education
Ms. Stephanie S. Lee Director Office of Special Education Programs United States Department of Education

 
 August 7, 2006
The Honorable Robert L. Ehrlich, Jr. Governor of Maryland 100 State Circle Annapolis, Maryland 21401
Re: Investigation of the Baltimore City Juvenile
 Justice Center in Baltimore, Maryland

Dear Governor Ehrlich:
I am writing to report the findings of the Civil Rights Division’s investigation of conditions and practices at the Baltimore City Juvenile Justice Center (the “Justice Center”), in Baltimore, Maryland. On June 30, 2005, we notified you of our intent to conduct an investigation of the Justice Center pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). CRIPA and Section 14141 give the Department of Justice authority to seek remedies for any pattern or practice of conduct that violates the constitutional or federal statutory rights of children in juvenile justice institutions.
In September and October 2005, we conducted on-site inspections of the Justice Center with expert consultants in various disciplines. Before, during, and after our site visits, we reviewed a wide variety of relevant State and facility documents, including policies, procedures, and juvenile corrections and other records relating to the conditions of confinement of hundreds of Justice Center residents. During our visits, we also interviewed Justice Center and State administrators, professionals, staff, and residents, and observed youths in their living areas, in activity areas, in classrooms, and during meals. In keeping with our pledge of transparency and to provide technical assistance where appropriate regarding our investigatory findings, we conveyed our preliminary findings to State counsel and to State and facility administrators and staff during verbal exit presentations at the close of each of our onsite visits.

- 2 -

We would like to express our appreciation to the State for the extensive cooperation and assistance provided to us throughout by officials from the Department of Juvenile Services and by the Justice Center administrators, professionals, and staff. We also appreciate the State’s receptiveness to our consultants’ on-site recommendations. It is particularly noteworthy that after our initial investigatory visits the State immediately corrected, or developed corrective action plans to address, many of the issues identified during our tours. Indeed, on February 6, 2006, the State provided us with a list of 17 specific improvements made at the facility since our last facility tour. Many of these items purport to address issues identified by our consultants and reflected in this letter.1 We applaud the efforts by the State to promptly address the identified areas of concern. Given the systemic nature of many of these problems however, it will understandably take time to fully correct many of these problems. To be clear, our findings of conditions at the facility reflect information available to us and evaluated by our consultants at the time of our investigatory tours. We hope to continue to work with the State and officials at the Justice Center in the same proactive and cooperative manner going forward.
Consistent with our statutory obligations under CRIPA, I now write to advise you formally of the findings of our investigation, the facts supporting them, and the minimal remedial steps that are necessary to remedy the deficiencies set forth below. 42 U.S.C. § 1997b(a). Specifically, we have concluded that a number of conditions and practices at the Justice Center violate the constitutional and federal statutory rights of its youth residents. In particular, we find that children confined at the Justice Center suffer significant harm and risk of harm from the facility’s failure to: (i) adequately protect children from youth violence; (ii) adequately safeguard youths against suicide; and (iii) adequately provide behavioral
1
 For example, the State indicated that since the time of our tours, the Maryland State Department of Education has assumed responsibility for educational services at the facility, the State has developed and implemented a new suicide training prevention program for facility staff, and the State has implemented a “watch tour” system at the facility where staffconducted room checks and seclusion checks will now be electronically documented. Additionally, the State indicated that it was planning on issuing a request for proposal for a qualified provider of mental health services at the facility with provisions for additional staffing and staff hours and with a target implementation date of July 1, 2006.

- 3 -

health care services. In addition, the facility fails to provide required education services pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1482 (West, Westlaw through July 3, 2006).
In the course of our investigation, we also reviewed staff use of force, medical care, environmental health conditions, and fire safety. We found no systemic constitutional deficiencies in these additional areas, and commend the State for its commitment to ensuring that youths at the facility are subject to adequate conditions in these areas.
I. BACKGROUND
The Justice Center is a 144-bed facility for boys aged 12 to 18, with an average age of 15. The facility opened for operation in October 2003. It is operated by DJS and serves as both a preadjudication facility and as a facility for youths who have already been adjudicated delinquent and committed to DJS care but are awaiting placement elsewhere in a treatment facility. On the date of our last visit the residential population was 112. The average length of stay at the Justice Center ranges from 15 to 19 days, but some “awaiting placement” youths have remained at the facility for as long as four months. The layout of the facility includes three pods with one pod containing primarily youths awaiting placement, and the other two pods housing youths in detention. Each pod includes four separated living areas.
II. LEGAL STANDARDS
As a general matter, states must provide confined juveniles with reasonably safe conditions of confinement. See Youngberg v. Romeo, 457 U.S. 307, 315-24 (1982); Bell v. Wolfish, 441 U.S. 520, 535-36 & n.16 (1979); Slade v. Hampton Roads Regional Jail, 407 F.3d 243 (4th Cir. 2005). Such constitutionally-mandated conditions include the right to adequate medical care, a concept that embraces both mental health treatment and suicide prevention measures. See Patten v. Nichols, 274 F.3d 829, 835 (4th Cir. 2001); Shrader v. White, 761 F.2d 975, 978 (4th Cir. 1985); Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992). Further, confined juveniles are entitled to protection from physical assault. Youngberg, 457 U.S. at 315-16. The State is also obliged to provide special education services to juveniles with disabilities pursuant to the IDEA. 20 U.S.C.A. §§ 1400-1482 (West, Westlaw through July 3, 2006). See Wilson v. Fairfax County School Board, 372 F.3d 674, 678 (4th Cir. 2004). As described below, the State has fallen short of these constitutional and federal statutory obligations.

- 4 -

In assessing whether the constitutional rights of institutionalized juveniles have been violated, the governing standard is the Due Process Clause of the Fourteenth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982); Patten, 274 F.3d at 840-41. Accordingly, the proper inquiry focuses on whether the conditions substantially depart from generally accepted professional judgment, practices, or standards. See Youngberg, 457 U.S. at 323.
III. FINDINGS
A. INADEQUATE PROTECTION FROM HARM
Our investigation revealed constitutional deficiencies in the protection from harm measures in place at the Justice Center. In particular, the facility fails to adequately protect youths from youth-on-youth assaults and suicide risks.
1. Inadequate Protection from Youth-on-Youth Violence
Generally accepted professional standards require that juvenile detention facilities must protect youths from assault by other youths. Facilities must maintain sufficient structure, safeguards, and staffing to ensure safety. The Justice Center experiences unacceptably high levels of youth-on-youth violence. The number of youth-on-youth assaults at the facility was 47% higher than the national average. According to Performance Based Standards ("PbS") data for the October 2005 semi-annual reporting cycle, the Justice Center reported a rate of assaults per 100 days of youth confinement at 0.745.2 The national field average rate was 0.396. This data represents an improvement over the April 2005 PbS reporting cycle data indicating that youth-on-youth assaults were 59% higher than the national average. Inadequate staffing levels, an ineffective behavior management plan, and the availability of environmental weapons, have contributed greatly to the high level of youth violence.
2
 Performance-based Standards for Youth Correction and Detention Facilities is a self-improvement and accountability system used in 31 states and the District of Columbia to better the quality of life for youths in custody. PbS gives agencies the tools to collect data, analyze the results to design improvements, implement change, and measure effectiveness with subsequent data collections from within the facility and against other participating facilities. See http://www.pbstandards.org.

- 5 -

Adequate staffing levels and effective incentives for good behavior are particularly important in maintaining a safe environment. A lack of these tools at the Justice Center results in a high number of group altercations. We reviewed several incidents involving several attackers and lone victims. The attacks appeared to be both brazen and premeditated. This reflects that the system is so ineffective that certain youths feel comfortable in orchestrating such activity. For example, in a June 2005 incident, the facility experienced a large-scale group disturbance in three separate units that required the intervention of the Baltimore City Police Department in order to restore order. In a July 2005 incident, six youths repeatedly kicked and punched a victim in the presence of staff. In another July incident, three youths repeatedly hit and kicked a victim, also in front of staff. Both victims required medical treatment.
Adequate staffing levels are also essential to ending youthon-youth assaults quickly before serious harm occurs. We reviewed several incidents where youth altercations resulted in serious physical injury requiring treatment at a local hospital emergency room. Consider the following examples of incidents resulting in emergency room visits:
• In a September 2, 2005 incident, a youth assaulted another youth striking him several times in the face with a closedfist. The victim sustained injuries to his left eye, which was swollen and bleeding, a laceration to the corner of his left eye and nose, a laceration on the lower lid of his left eye, a bloody nose, and injuries to the back of his head.
• In an August 31, 2005 incident, one youth struck another youth several times in the face with a closed-fist. The victim sustained injuries to his left eye, lip, neck, and shoulder. The victim’s left eye was injured so severely that he could not see out of that eye.
• In a June 4, 2005 incident, as officers were escorting youths back from recreation, two youths began arguing. Staff directed the youths to separate, but one youth ultimately struck the other youth. During the ensuing melee, the victim fell back, “splitting open the back of his head.”
As discussed above, the pervasiveness and seriousness of the violence at the Justice Center appears to result primarily from an inadequate behavior management plan, chronic shortages in trained direct-care staff, and the presence of environmental security hazards. Each of these topics are discussed below in

detail.

- 6 -


a. Inadequate Behavior Management Plan

Generally accepted professional standards require that facilities confining youths provide effective behavior management systems. Effective behavior management systems generally involve incentive-based programs for promoting appropriate behavior throughout the day, and clearly defined guidelines that are consistently applied within the facility. For youths identified as having behavioral health problems, behavior management programs need to be coordinated with a treatment plan. The behavior management plan needs to be based on proven techniques and focused on achieving lasting change through the integration of evidence-based (or scientifically measurable) outcomes. Facilities must continuously track behaviors of their juvenile population and adjust their behavior management plan to achieve a desired result.

At the time of our visit, the Justice Center's behavior management system did not appear to be adequate to the task of managing children at risk and preventing youth violence and aggressive and planned group behaviors. The available sanctions at the Justice Center appeared demonstrably ineffective at deterring deliberate premeditated behaviors. On December 5, 2005, the Justice Center implemented a modified Point System (“New System”). Because the New System was implemented several weeks after our tours of the facility, we are unable to properly evaluate its effectiveness.

At the time of our tours, the Justice Center was utilizing an incentive-based behavior management point system (“Point System”). The Point System had three levels. Each level provided a continuum of incentives including, among other things, additional telephone calls, television and radios on the living units, video gaming privileges, and evening recreation time. Level three youths were also permitted to use points to purchase incentives such as additional visitations, movie night attendance, and commissary items.

If a youth received no point deductions for negative behavior, the minimum length of time required to achieve the second level was seven days, and the minimum length of time required to achieve the third and highest level was 20 days. The average length of stay in the facility fluctuates between 15 and 19 days. As a result, many youths were unable to achieve the program’s most prized incentives. Sanctions for negative behavior were limited to point deductions under the Point System.

- 7 -

Due to Maryland regulations, disciplinary confinement is not available as a sanction.3 The maximum number of points that may have been deducted from a youth in a single day is 60. By contrast, a youth earned 50 points in a single day for good behavior. Accordingly, available rewards under the Point System appeared to be inadequate at encouraging positive behavior, and available sanctions appeared to be entirely inadequate at deterring serious aggressive and assaultive behavior.
Under the New System implemented in December of 2005 youths must earn points by demonstrating positive behavior, instead of points being awarded automatically with deductions for negative behavior. With consistent good behavior, a youth may reach the second level after three days, and the third level after a total of seven days. Also, youths at all levels can now earn tokens to purchase incentives such as extra telephone calls and additional visitation. Sanctions for negative behavior now include verbal correction, inability to earn points, social separation,4 and a deduction of tokens. Youths who fail to advance under the New System are referred to the treatment team for possible intervention. As indicated above, we have not had the opportunity to properly assess the New System. However, based on documents the facility recently provided, the New System appears to be a significant improvement from the old Point System.
b. Staffing Levels
We commend DJS for working diligently to secure adequate staffing levels at the facility. Current staffing levels permit DJS officials to comply with their goal of 1:6 staffing ratios and avoid problems associated with staff frequently being required to work double shifts. We strongly encourage DJS to maintain these appropriate staffing levels.
The absence of sufficient numbers of trained and skilled staff in a detention facility makes it virtually impossible to
3
 COMAR 16.05.02.03. Use of Locked Door Seclusion A. A facility employee may not place a youth in locked door seclusion as punishment. B. A facility employee may place a youth in locked door seclusion only: 1) When it is clearly necessary to protect the youth or other individuals or to prevent escape; and 2) After less restrictive methods have been tried or cannot reasonably be tried.
4
 The New System defines “social separation” as the practice of moving a youth to his room, with the door open, for up to 59 minutes.

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provide youths with consistent care, maintain custody and supervision, and provide a safe environment. Until recently, chronic understaffing at the Justice Center contributed to violent and dangerous conditions. Typical vacancy rates for effective juvenile facilities are between five and 12 percent of budgeted staffing levels. Based on the number of Justice Center direct-care staff positions budgeted at the time of our review, approximately 146, the facility direct-care staff vacancy rate has been as high as 50%, and averaged 42% for the last six months of 2004. As recently as July 2005, the direct-care staff vacancy rate was 23%. Facility direct-care staff have historically been required to work frequent double shifts in order to provide minimal coverage to compensate for staffing shortages.5 Prolonged continuation of mandatory overtime generally reduces effective supervision, creates significant morale issues, and contributes to increased numbers of adverse incidents.
Despite a chronic history of severe understaffing, the Justice Center has recently been able to significantly increase staffing levels and reduce vacancy rates in most categories of employees, including direct-care staff. Direct-care staff vacancies for the last six months of 2005 have averaged 10%. During our second facility visit, we were informed by Justice Center personnel that all direct-care staff vacancies had been filled as of October 16, 2005. Further, overall facility staffing levels have increased 41% in the last six months of 2005 compared to the last six months of 2004.
c. Environmental Security Hazards
Certain environmental hazards have exacerbated the seriousness of incidents of youth violence at the Justice Center. For example, and as partly illustrated by the examples below, removable chairs were used as weapons in at least eight incidents of assault, brooms were used in at least three incidents of assault,6 and shanks (improvised sharp weapons) made from toothbrushes were present in at least two incidents of assault. In at least two incidents involving chairs, youths required
5
 “Direct-care staff” includes Resident Advisors, Resident Advisor Supervisors, Group Life Manager I, and Group Life Manager II staff. See Memorandum from Rodney Pegram, Director of Detention, to All Staff, dated May 2, 2005, re: Staffing Levels for Direct Care Staff.
6
 On February 6, 2006, the State informed us that since the time of our tours, all potential weapons such as brooms, have been removed from unsecured rooms into secured closets.

- 9 -

treatment at hospital emergency rooms and one of the victims required emergency surgery for apparent brain trauma. Consider the following illustrative examples:
• In an August 25, 2005 incident, two youths began fighting and one youth was struck in the face with a chair. The injuries were so severe that the victim required treatment at a local hospital emergency room.
• In an August 3, 2005 incident, two youths began arguing. Despite staff attempting to separate the youths, one youth picked up a chair and threw it at the victim hitting the victim in the face. The victim’s face began to swell very badly and the Justice Center physician ordered the victim to immediately be taken to the hospital emergency room. The victim needed emergency surgery, and may have sustained internal injuries to his head and neck.
• In a June 8, 2005 incident, three youths assaulted another youth, who was seated in the unit, by punching him in the face and throwing chairs at him. The victim responded by brandishing a plastic shank and attempting to stab one assailant in the throat. The victim was then struck in the face with a chair and required medical treatment.
These known environmental security hazards should be eliminated by replacing these items with immovable or unliftable chairs, better control of brooms and cleaning equipment, and toothbrushes made with shorter handles and flexible nylon. Additionally, frequent and thorough cell searches could reduce the use of weaponized contraband.
2. Inadequate Protection from Risks of Suicide
Suicidal behavior in juvenile detention facilities represents a major threat to the lives and well being of the youths. Generally accepted professional standards require juvenile institutions to protect youths from self harm. By permitting known environmental suicide hazards and by failing to properly monitor youths in seclusion and youths on suicide watch status, the Justice Center fails to meet this requirement.
a. Environmental Suicide Hazards
There are a host of known environmental suicide hazards at the Justice Center. These hazards pose an unacceptably high risk of self harm for youths at the facility. The suicide hazards include mezzanine railings in the housing units, the design of

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the bed frames in the sleeping units, and the configuration of the bathroom safety rails. We reviewed numerous incidents and reports of youths tying ligatures around their necks and attempting to hang themselves from the second-story railings. In two unrelated incidents on April of 2005, two youths attempted suicide from the railing on the same day. We also reviewed several reports of youths trying to commit suicide by tying themselves to the bed frames. One incident requiring emergency resuscitation and emergency room treatment resulted from a youth hanging himself from a bathroom hand rail.
The danger posed by the mezzanine railings is of particular concern. The facility has been aware of this hazard at least since January 2005. In quarterly reports released on January 14, 2005 and March 11, 2005 by the then Office of the Independent Juvenile Justice Monitor (“Independent Monitor”)7, the Independent Monitor expressed concerns about the risk posed by the railings. In his June 27, 2005 report, the Independent Monitor recounted several prior warnings to the facility administration about the dangers posed by the railings. Notwithstanding the Independent Monitor’s admonitions and several subsequent suicidal behaviors involving the railings, the hazard had not been remedied as of the date of our last visit, six months after the date of the report.
Indeed, in the monitor’s report for the period ending December 31, 2005, the JJMU expressed concern about the railings, and indicated that the danger caused by the railings “decreases the number of beds legitimately available [at the facility] to only the lower tier, which will house 72 [youths].” The JJMU further reported:
Although this Office has repeatedly insisted that the second tier railings be suicide proofed and although this issue was addressed again in a Special Timely
7
 The Office of the Independent Juvenile Justice Monitor was a State office created to monitor conditions in all DJS facilities and report its findings to the Governor, the Maryland General Assembly, and the DJS Secretary. Staff members visited the facilities, conducted announced and unannounced tours, and authored detailed reports of their findings, recommendations, and DJS responses. Independent Monitor officials have previously identified similar violations as those identified in this letter and reported those problems to DJS. This office has been restructured and is now the Juvenile Justice Monitoring Unit of the Office of the Attorney General (“JJMU”) pursuant to Maryland House Bill 1342 which became law on January 19, 2006.

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Report submitted on 8/5/05 and again in last quarter’s report, the upper tier railing system is still not suicide proof. Attempts to commit suicide and other safety concerns regarding the upper tier railings continue.
The design of the facility bed frames has also been a longstanding concern of the Independent Monitor. In his quarterly report released on June 14, 2004, the Independent Monitor recommends that:
DJS should secure the services of a professional architectural and design firm specializing in secure correctional facilities in order to review all equipment and furnishings to ensure that it meets acceptable standards for a secure detention facility.
In that same report, the annual report for the period ending June 30, 2004, and the quarterly report released on January 14, 2005, the Independent Monitor indicated that the existing bed frames posed a suicide hazard and should be replaced. Indeed, in the January report, the Independent Monitor admonishes:
The protruding posts and openings on all the bed frames must be eliminated. The beds have a number of openings on the frame similar to the openings on the bed used in the March 2002 completed suicide at the Waxter Children’s Center in Laurel. The beds also have protruding posts extending from the frame, which may also be used to tie off from in a suicide attempt. On August 22, 2004, a youth [at the Justice Center] was found with a sheet tied to a bed frame around his neck. Supervisory staff performed CPR and first aid on the youth.
The same longstanding concerns regarding unsafe bed frames and the mezzanine railings voiced by the Independent Monitor remained unresolved as of the date of our last tour. The State recently acknowledged the threat posed by the bed frames in its Facilities Master Plan.8
b. Inadequate Suicide Watch and Seclusion Monitoring
Residents in seclusion or identified as suicide risks are in significant danger of self harm. To mitigate the danger to youths in seclusion, generally accepted professional standards and DJS policy require that direct-care staff monitor residents
8
 Released January 16, 2006; Appendix A-15 (“The metal cots in the rooms could be a suicide threat.”).

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in seclusion every ten minutes and record their rounds on a door sheet or log.9 There is insufficient documentation to confirm that the checks at the Justice Center are consistently performed in accordance with policy or within generally accepted professional standards.
We found several cases where cell checks for youths who were in seclusion for significant periods of time were not adequately documented. For example, on September 20, 2005, youth KJ10 was placed in seclusion for over 24 hours. During the entire length of seclusion, cell checks were documented for only a two-and-ahalf hour period. In addition to missing documentation regarding cell checks, we found numerous discrepancies between the DJS seclusion observation policy and the Justice Center’s practices. Of the 12 cases of seclusion documentation we reviewed, only three indicated that staff had performed all required cell checks. In at least three cases there were discrepancies between the unit log book entries and the door sheets. For example, in at least four cases, there were no recorded checks by the nursing staff. In two cases, we were not even able to determine the length of time the youths were held in seclusion.
Like youths in seclusion, youths identified as having suicidal tendencies are in significant danger of self-harm. To mitigate the danger to suicidal youths, generally accepted professional standards and a DJS directive require juvenile detention centers to provide close observation of youths who exhibit suicidal behaviors.11 The Justice Center utilizes a three-tier suicide watch level system which provides for a continuum of observation for at-risk youths. At a minimum the system requires that staff observe suicidal youths six times per hour, and at staggered intervals of between one and ten minutes apart during waking hours. Youths deemed to be at particularly high risk of suicidal behavior must receive continuous observation during waking and sleeping hours. All observations and monitoring must be coherently documented.
The Justice Center has not consistently adhered to generally accepted professional standards and DJS policy regarding the
9
 See DJS Policy number 03.14.04 re: Limits on Use of Restraints and Seclusion, eff. February 18, 2000.
10
 To protect the privacy of youths referenced in this letter, initials have been used in place of actual names.
11
 See DJS Secretary’s Directive number SD E2270-01-01 re: Suicide Prevention Policy (revised 11/06/02).

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observation and protection of youths at risk of committing suicide. We found numerous examples of youths on suicide watch where there were no documented staff observations or consultations by the mental health staff. Moreover, none of the cases we reviewed contained any graduated step-down release plan. Among the cases we reviewed for September 2005, five of the youths were on the highest suicide watch status, requiring continuous one-on-one staff observation. Of these five cases, the facility was unable to document staff observation for significant periods in four of the cases. The facility also was unable to document psychological consultations with the youths in four cases. In one case, we found observation gaps totaling 43 hours. In two other cases, we found gaps totaling more than 20 hours.
These apparent gaps in seclusion and suicide watch monitoring create a very high risk for self harm among known suicidal youths.
B. INADEQUATE MENTAL HEALTH CARE
The Justice Center is lacking in several areas with regard to mental health care. Deficiencies include inadequate mental health assessments, inadequate mental health treatment and case management, inadequate communication and record keeping, and inadequate confidentiality safeguards.
As a preliminary matter, it is worth noting that many of these deficiencies described below are attributable to staffing shortages. Three part-time fellows in child psychiatry from the University of Maryland provide only ten hours of psychiatry services per week. At the time of our tour, the Justice Center’s mental health personnel were roughly half the number needed to meet generally accepted professional standards. Four of eight social worker positions were vacant, three of four addiction counselor positions were vacant, and two of three supervisory positions were vacant. Although the supervising psychologist has considerable experience providing mental health care to youths in detention, the front-line clinicians tend to be very inexperienced. These staffing limitations inevitably affect the quality of mental health care.
1. Inadequate Mental Health Screening and Assessments
Generally accepted professional standards require that all youths entering secure facilities receive a reliable, valid and confidential initial screening and assessment to identify

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emergent suicide risks and psychiatric, medical, substance abuse, developmental, and learning disorders. Staff should refer youths for any required care. To do this, staff must gather available information, such as a youth’s previous records from past admissions, and glean important information needed to care for and treat the youth. The information must then be communicated to appropriate personnel so that each youth’s needs are appropriately and timely addressed.
Initial mental health and substance abuse screening occurs as youths are admitted into the Justice Center, and the standardized questioning during that process appears to be thorough and consistently applied. The intake worker first administers the Facility Initial Reception/Referral Screening Tool – Health Care (“FIRRST-HC”), which asks whether the youth is conscious, coherent, intoxicated, and/or thinking of harming himself or others. Subsequent tests include the Massachusetts Youth Screening Instrument (“MAYSI”), a 52-item yes/no questionnaire designed to discover symptoms of mental illness, and the Adolescent Substance Abuse Subtle Screening Inventory (“SASSI”), a questionnaire designed to identify youths with a high probability of having a substance abuse disorder. Screening with positive results (especially regarding suicidality) triggers a rapid and more extensive assessment by a clinician, but it is not entirely clear what criteria are used to identify a need for further immediate assessment. Moreover, potential dangers revealed in youth responses to the questionnaire are not systemically detected. In particular, the manner in which the intake case manager uses the MAYSI includes no follow-up inquiry in response to answers that reflect thought disorders, trauma exposure, or answers that might be ambiguous.
Youths with identified mental health needs should be provided a full mental health assessment (subsequent to the intake assessment), and such assessments should include actual opinions (with support and reasoning) on a five-axis psychiatric diagnosis, risk assessment and management, and specific mental health treatment recommendations. The Justice Center’s records generally do not contain such information. Most youths admitted to the detention center are evaluated by a clinician on the day of admission or the following day. However, the assessment process is unstructured, consisting of informal interviewing and casual information gathering. The assessments are not thorough, are poorly documented, and are often internally inconsistent. The records do not reflect clear mental status data nor do they contain explicit diagnostic or functional analysis. Assessments do not include any tests or other structured instruments beyond the initial mental health and substance abuse screening tests. We were told that the school psychologist conducts psychological

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testing in the context of individual educational planning, but we did not see any evidence of such testing in any of the mental health records we reviewed. Assessments are particularly lacking with regard to substance abuse: no substance abuse evaluations of any kind are conducted beyond the initial screening.
As discussed further below, the Justice Center’s assessments often do not include information regarding prior treatment in the community or at other residential facilities and hospitals. Similarly, the facility’s efforts to engage residents’ families in overall assessment and in mental health assessment and treatment are inadequate. We understand that some families may not be interested in, or responsive to, outreach from facility clinicians. However, families are an extremely important source of clinical information, and it is not possible to conduct an adequate overall functional or mental health assessment without including current and historical information from families.
2. Inadequate Mental Health Treatment and Case Management
Treatment planning requires the identification of symptoms and behaviors that need intervention and the development of strategies to address them. Such planning is a critical part of generally accepted professional standards and it is necessary for effective treatment of serious mental illness. As noted above, mental health assessments often lack necessary diagnostic information, thus it is not surprising that treatment plans fail to target specific symptoms or articulate meaningful strategies and provide no mechanism for measuring whether the plan is working.
Mental health treatment at the time of our visit consisted of informally-scheduled individual contacts with clinicians and participation in psycho-educational groups. There is some effort to note particular functional problems (though not with diagnostic clarity) and to supply supportive or educational services roughly addressing these problems. However, we observed no effort to articulate particular individual characteristics or strengths in youths that would dictate the provision of specific treatment approaches. And, as noted previously, there is little family involvement in treatment.
Substance abuse treatment is even less targeted, consisting largely of non-specific psycho-educational groups for all youths. Staff also provide informal individual counseling designed to improve awareness of the emotional bases for substance abuse, and staff sometimes counsel youths about community resources

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available to substance abusers. However, staff generally do not examine individual patterns of use, abuse, addiction, or motivation, nor do they instruct youths in alternative stress management or abstinence support techniques. Accordingly, substance abuse treatment services are inadequate.
Clinical interventions are organized around crisis issues such as suicide risk evaluation but, even in cases where such risk is recognized, records do not reflect implementation of specific treatment aimed at alleviating the youth’s discomfort and reducing the risk (beyond the suicide watch process). There is no standard format for assessment of suicide risk, or for assigning a watch level. When we asked to see the approved suicide risk scale used by clinicians in assessing appropriate suicide watch status, we were told that such a scale did not exist. This is a stark departure from generally accepted professional standards. Because there is no suicide threat scale, the Justice Center’s policy sets almost no threshold for responding to suicidality, i.e., the staff are required to respond to seemingly minor risks. Nonetheless, the vast majority of recorded incidents include explicit and substantial suicidal behavior, suggesting that there may be a lack of sensitivity to voiced indicators of risk that occur prior to such behavior. A well-developed assessment system typically would identify a higher percentage of suicidal youths before they actually attempt suicide. The Justice Center policy calls for regular follow-up and assessment of suicidal youths by clinicians, but the documentation of clinical visits for this purpose was inconsistent.
The Justice Center’s own internal review of cases of suicidal youths revealed that the frequency of clinician meetings with youths on suicide watch often was less than required by generally accepted professional standards and DJS policy. That review further revealed that documentation and implementation of intervention plans often was incomplete. In one case, a suicidal youth returned from hospitalization on the highest watch level and was discharged to his appointed placement two days later. There was no indication that he was seen by mental health staff during those two days. Three other youths were put on watch levels and were never seen by mental health clinicians at all. At least one youth on the highest watch level was released directly into the community without any plans for follow up or community treatment.
In general, mental health planning and treatment for suicidal youths has been inadequate. Communication among staff and documentation of watch level assessments is poor, and mental health staff have failed to provide proper notifications to

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families and community workers when a youth is put on suicide watch. Facility staff have had difficulty coping with cases involving co-occurring problems of depression, irritability, suicidal ideation, and manipulativeness, as well as cases in which professionals have disagreed regarding the nature of the disorder and the degree of risk it represents.
In general, psychiatric treatment services at the facility are inadequate. According to Justice Center policy, mental health staff and nurses refer youths to a psychiatrist for pharmacological assessment and treatment whenever a youth arrives from a psychiatric hospital; whenever a youth has been on the highest suicide watch level for three days; whenever a youth has been on the lower suicide watch levels for seven or more days; whenever a youth arrives taking psychiatric medication; whenever a youth asks to see a psychiatrist; whenever a youth has a “recent history of psychotropic medication” (“recent” is not defined); and whenever a youth displays “behavioral signs of symptoms suggestive of a mental health or behavioral disorder.”12 Psychiatrists have limited, or no access, to previous psychiatric records or summaries and lack necessary background information to treat patients effectively. They are not involved in treatment team meetings and do not have direct access to residential staff. Accordingly, psychiatrists are isolated from other mental health clinicians at the facility and lack appropriate background information to provide for adequate levels of care.
Psychiatric attention to youths who require psychotropic medications appears reasonably thorough, with well-documented assessments, adequate follow-up, and reasonable treatments prescribed. However, family involvement in the development of patient history is lacking, and staff sometimes fail to obtain the consent of a parent or guardian to treat a patient. Psychiatry fellows would benefit from closer supervision and should bring to their supervisor notes and contributing information for each patient at least once per week. As noted previously, psychiatric involvement in the overall provision of mental health care is inadequate. In order to meet generally accepted professional standards, a facility such as the Justice Center should budget at least 16-18 hours per week for on-site psychiatric care.
3. Inadequate Communication and Record Keeping
12
 The latter criteria is so broad that, if implemented, it would require the referral of virtually every youth in the facility.

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Generally accepted professional standards require that records be kept to aid in patient diagnosis and treatment, and to measure patient progress. Most of the mental health clinicians’ progress notes showed evidence of having been introduced to the standard “SOAP” format, but the entries suggest these personnel were not trained to implement it properly. The SOAP format divides a note into four parts: “S” (subjective) describes the patient’s subjective account of problems and symptoms; “O” (objective) describes findings observed by the clinician or learned about from others; “A” (assessment) provides the clinician’s understanding and opinion of the current situation based on the subjective and objective findings; and “P” (plan) provides the clinician’s recommendations for intervention. Notes in the records we reviewed commonly included a line or two of information following “S”, another line or two following “O” (with no distinction between them in terms of the type of information), and then considerably more information following “A” (but no actual assessment, formulation, or opinion), with some recommendation then following “P.”
More importantly, critical information often was not included in the charts or was overlooked in subsequent interviews. The case of HC is illustrative:
HC was admitted twice in the Spring of 2005. HC’s first assessment noted that he had a history of psychiatric medication and hospitalization. The second assessment reflected no history of psychiatric contact or hospitalization. HC was admitted again for a week in August and then released to a group home. There is no mental health note from this period. HC was re-admitted on September 14, 2005 with higher MAYSI scores than those recorded in previous stays, including a high score for suicidal ideation. Nonetheless, a mental health evaluation regarding his suicide watch level said the “boy has never had suicide ideation.” The clinician did not inquire into the boy’s two positive responses on the MAYSI thought disorder scale. The next day he was seen by a different clinician, who noted that he showed a depressed mood, had been hospitalized in 1999, and had been receiving psychiatric medication previously. The latter clinician referred HC to psychiatry, but he was not seen until one week later.
A psychosocial assessment included some cursory history about school problems, his hospitalization at age nine, and vague information about substance abuse. The report included no attention to his trauma exposure, and no attention to the issue of suicide ideation or risk. When

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the psychiatrist saw HC, the patient was described as having no history of hospitalization and no history of medication.
The treatment team process provides a valuable opportunity for routine informal information sharing among clinical staff, which should then result in appropriate, specific action plans for each youth needing care. However, the current team process does not produce detailed assessments nor does it produce specific treatment plans.
4. Inadequate Confidentiality Safeguards
Generally accepted professional standards require that mental health information be kept confidential. This standard protects the privacy of patients, and it allows them to speak freely and to disclose all the information necessary for diagnosis and treatment. We were told by Justice Center mental health staff that they inform youths that the youths’ information will be kept in confidence, except for information about risk of harm to themselves or others, and except for information sharing among treatment team members. Youths may, or may not, also be told that the clinician may be called to court to answer questions. We were assured that the Justice Center would not produce a youth’s mental health record to the court, but we were also told that these records are routinely made available upon request to the clinicians working on behalf of the court to conduct forensic mental health evaluations.
This is a distinction without a difference. If records are made available to an agent of the court, or if Justice Center clinicians are compelled to testify, then patient records are not confidential. Accordingly, under generally accepted professional standards, youths should be told that their communications with clinicians may be revealed to the court. Moreover, when a youth refuses non-confidential treatment or when a clinician determines that confidential treatment is in the patient’s best interest, the Justice Center should provide third-party or otherwise truly confidential mental health services. In any event, youths should receive complete and accurate information regarding the extent to which the information they provide will remain confidential.
C. INADEQUATE EDUCATIONAL INSTRUCTION OF YOUTH WITH DISABILITIES
Youths with disabilities have federal statutory rights to special education services under the IDEA. In states that accept federal funds for the education of children with disabilities,

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such as Maryland, the requirements of the IDEA apply to juvenile facilities. See 20 U.S.C. 1412(a)(1); 34 C.F.R. § 300.2(b)(1)(iv). At the time of our tour, 45 percent of the Justice Center’s youths had been identified as qualifying for special education services under the IDEA. The average age for youths at the Justice Center is 15 and the median reading level is fifth grade. Many of the youths have been truant, suspended, or expelled from their previous schools and, consequently, may not have been in school for some time prior to their detention. The Justice Center violates the rights of youths with disabilities secured under the IDEA by failing to provide such youths with adequate special education and resources. Specifically, the education program at the Justice Center is deficient in that it fails to provide adequate access to education by youths who are eligible for special education services and fails to provide adequate development and implementation of Individualized Education Programs (“IEPs”).
At the outset, we note that there are several positive aspects of the educational program at the Justice Center. For example, the Justice Center’s teachers are dedicated, knowledgeable, and enthusiastic. A new computer lab has been set up and a new reading curriculum has been introduced. Moreover, the Maryland State Department of Education has recently assumed control of education programming at the facility and there are plans for space expansion for classroom use. Nevertheless, our investigation revealed that the Justice Center fails to provide adequate special education services required under IDEA.
1. Inadequate Access to Special Education
The IDEA requires that all students with disabilities have access to free and appropriate public education (FAPE) which meets the standard of the State education agency. 20 U.S.C. §§ 1401(8)(b) [eff. July 1, 2005: 20 U.S.C. §§ 1401(9)(b)]; 1412(a)(1)(A). See also 34 C.F.R. § 300.600(a)(2)(ii). Maryland state education standards require that school teams with responsibility for developing IEPs meet to review existing data and instructional interventions and strategies utilized for the student. See COMAR 13A.05.01.04(A)(2). Although retrieval of student records to provide information on special education needs should be completed within five days of arrival at the Justice Center, we determined that educational records were delivered within five days for only four of 36 special education students. The failure to secure these records on a more timely basis delays students with disabilities from access to appropriate educational services.

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Even in cases where the educational plan has been clarified, there remain significant problems with access to services. Students with disabilities, in particular, require consistent attendance at school in order to access the general education curriculum and have an opportunity to achieve academic success. In general, the Justice Center’s population has substantial academic deficits and many students are at risk for academic failure. Despite these risks, the Justice Center documentation indicates that students with disabilities do not consistently attend school. Among the examples we uncovered: entire units were kept away from school for days at a time; on July 19, 2005 an episode of vandalism closed the school for the entire day; on May 24, 2005 a lock-down closed the school; on May 27, 2005 unit 43 attended school for only three hours of the five hour school day. While visiting a class at the Justice Center, we noted the class was dismissed 15 minutes before its scheduled dismissal time after the students “reminded” the teacher that it was the time when class routinely ends. The Justice Center’s failure to provide adequate instructional hours to students with disabilities deprives them of opportunities to receive an appropriate education.
Furthermore, students with disabilities were denied special education services when they were placed in restricted settings such as segregation or lock-down. We were told that such students were provided with educational packets by a resource teacher. Five students reported to us in interviews that they had not been given educational materials while in segregation. Whether the packet was delivered or not, we find that the delivery of educational materials by a teacher who stays with the student for a few minutes does not constitute a full lesson. Moreover, such students in lock-down status are not permitted to have a pencil with which to do the school work in the packet. Given the correlation between time spent on instruction and academic success, the Justice Center is contributing to students’ failure by denying students with disabilities the minimum amount of academic instruction that they would receive in a community public school.
The typical public school system offers a continuum of services for students with disabilities, including all-day or partial-day instruction in self-contained resource rooms, and all day instruction in general education classrooms with support from special education teachers. To its credit, the Justice Center operates an inclusion school model, as envisioned under IDEA, 34 C.F.R. 300.550(b)(1), where special education students, who comprise 45 percent of the student body, spend most of their school day in general education classes. However, the IEPs of some students indicate that they need special individualized

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instruction outside the regular classroom. Those students do not receive appropriate services at the Justice Center. Our review of the Justice Center’s records revealed several instances where a youth’s individual special education services were dramatically lower at the Justice Center than at his previous educational setting. For example: H.A. received only 40 percent of educational time in differentiated instruction outside the regular classroom, rather than 66 percent as required by his prior IEP. C.C.’s and S.J.’s prior IEPs call for at least 98 percent of instructional time outside regular class, but both students received no resource time outside the regular class at the Justice Center. Drastic reductions in services such as the foregoing, without adequate justification, suggest that the Justice Center is tailoring the instruction of students with disabilities to what is available, rather than to the students’ individualized needs. The Justice Center’s practice of providing fewer than required hours of appropriate instruction denies students the special education to which they are entitled.
2. Inadequate Development and Implementation of
 Individualized Education Plans

The IDEA requires that each student with a disability have an IEP, and it describes the IEP components required to ensure that each student receives adequate special education services. 34 C.F.R. §§ 300.346, 300.347. The IEPs that are used to guide the delivery of special education services at the Justice Center do not adequately address the students’ needs. For example, goals and objectives on IEPs written at public schools may no longer be appropriate for students in a correctional setting and may need to be reformulated. To effectively assist students in achieving the goals and objectives listed in the IEPs, the goals and objectives must be written in realistic, measurable terms based on individualized needs. Many of the IEPS that we reviewed contained goals which cannot be objectively evaluated. For example, there are no criteria listed for evaluation of progress on a Justice Center goal such as, “[t]o improve math skills.” In several instances, the goal in the IEP referenced the baseline skill but did not set any specific target or an identified measurement tool. For example, one goal we discovered, “J. will increase broad reading skills from a 2.1 grade level,” does not set out any specific goal or a way of measuring improvement toward the goal.
In general, instruction for students with disabilities at the Justice Center is not implemented to align with the students’ needs. The IDEA requires that students with disabilities receive specially-designed instruction in which the content, method,

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and/or delivery of instruction is adapted as necessary to meet the unique needs of the student, and to ensure the student’s access to the general curriculum. 20 U.S.C. § 1401(29); 34 C.F.R. 300.26(a). Justice Center students are grouped for classes by their housing unit rather than academic criteria such as grade level, credits earned, skill levels, or cognitive abilities. In the inclusion model operating at the Justice Center, the general education teacher typically is responsible for implementing the instructional adaptations identified in the IEPs. However, we observed teachers giving lectures to the entire class, i.e., to both general education and special education students alike, and using the same books and materials for all students. When asked, some teachers were unaware of which students in their classes even required special education services and were not able to specify the individual IEP goals of their students. The lack of differentiated instruction at the Justice Center for students with disabilities adversely affects their ability to succeed in their schoolwork. The inclusion service delivery model that we observed at the Justice Center is not sufficient or appropriate for students with disabilities.
In addition, IDEA requires that students with disabilities receive related services to address their specific needs and allow them to benefit from instruction. 34 C.F.R. 300.24. “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 and parent counseling and training. 20 U.S.C. § 1401(26); 34 C.F.R. 300.24. Our investigation revealed that there were two students at the Justice Center whose IEPs indicated they needed speech and language therapy and who were not receiving those services. We were told that the Justice Center had been unable to develop a contract with a speech and language therapist to provide these services. Another youth’s IEP required the provision of occupational therapy, but the Justice Center has not been able to retain a therapist to provide that related service. The Justice Center’s failure to implement IEPs by providing identified related services violates the right of students with disabilities to receive an appropriate education.

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IV. REMEDIAL MEASURES
To remedy the identified deficiencies and protect the constitutional and statutory rights of Justice Center youth residents, the State should implement promptly, at a minimum, the remedial measures set forth below:
A. Protection from Youth Violence
1. Ensure that youths are adequately protected from physical violence committed by other youths.
2. Ensure that the facility maintains sufficient levels of adequately trained direct-care staff to supervise youths safely.
3. Ensure that there is an adequate and effective behavior management system in place, and that the system is regularly reviewed and modified in accordance with evidence-based principles.
4. Remove and replace known and identified environmental security hazards, e.g., chairs that can be used as weapons or toothbrushes that can be made into shanks.
B. Protection from Risk of Suicide
1. Remove and replace, or remedy, known and identified environmental suicide hazards.
2. Ensure that youths placed in seclusion are monitored consistently and that such monitoring be consistently documented in accordance with DJS policy and generally accepted professional standards.
3. Ensure that youths placed on suicide watch are monitored consistently, and that such monitoring be consistently documented in accordance with DJS policy and generally accepted professional standards.
C. Behavioral Health and Psychiatric Services
1. Ensure that mental health staffing (including case managers, clinicians, and psychiatrists) levels are adequate to meet the mental health needs of youths.
2. Provide adequate mental health and substance abuse screening and assessment.

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3. Provide adequate mental health and substance abuse treatment and case management.
4. Provide adequate mental health record-keeping and communications between and among the treatment teams, psychiatry staff, and the youths’ families.
5. Ensure that youths are provided with accurate information regarding the confidentiality of communications with the Justice Center clinicians.
D. Special Education
1. Ensure timely and appropriate assessment and identification of students with disabilities for special education services.
2. Provide students with disabilities adequate special education instruction.
3. Develop and implement adequate individualized education programs and provide necessary related services.
* * *
As stated above, we appreciate the cooperation we have received from DJS officials and facility staff throughout this investigation. We hope to be able to continue working with the State in an amicable and cooperative fashion to resolve the deficiencies found in the Justice Center’s protection from harm measures, mental health care services, and special education services. Provided that our cooperative relationship continues, we will forward our expert consultants’ reports under separate cover. Although these reports are the consultants’ work – and does not necessarily reflect the official conclusions of the Department of Justice – the observations, analyses, and recommendations contained in the reports provide further elaboration of the issues discussed in this letter and offer practical assistance in addressing them.
In the unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General is empowered to institute a lawsuit pursuant to CRIPA to correct the deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them. 42 U.S.C. § 1997b(a)(1).

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We would prefer, however, to resolve this matter by working cooperatively with you. We have every confidence that we will be able to do so in this case. The lawyers assigned to this matter will be contacting your attorneys to discuss this matter in further detail. If you have any questions regarding this letter, please contact Shanetta Y. Cutlar, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,
/s/ Wan J. Kim Wan J. Kim Assistant Attorney General
cc: The Honorable J. Joseph Curran, Jr. Attorney General State of Maryland
Kenneth C. Montague, Jr.
 Secretary, Department of Juvenile Services
 State of Maryland 

Rodney Pegram, Director
 Baltimore City Juvenile Justice Center

The Honorable Rod J. Rosenstein
 United States Attorney
 District of Maryland 

The Honorable Margaret Spellings
 Secretary
 United States Department of Education 

Mr. John H. Hager Assistant Secretary Office of Special Education and Rehabilitative Services United States Department of Education
Mr. Troy Justesen
 Director
 Office of Special Education Programs
 United States Department of Education 


 
 I. INTRODUCTION
A. On August 30, 2002, the United States notified State of Maryland officials of its intent to investigate conditions of confinement at the Cheltenham Youth Facility (“Cheltenham”) in Cheltenham, Maryland and the Charles H. Hickey, Jr. School (“Hickey”) in Baltimore, Maryland, pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”).
B. Between April 28 and June 12, 2003, the United States toured Cheltenham and Hickey with consultants in the fields of juvenile justice, medical care, mental health care, education and sanitation. At the time of these tours and until April 1, 2004, Hickey was operated by a for-profit corporation.
C. On April 9, 2004, the United States issued a findings letter pursuant to 42 U.S.C. § 1997 (a)(1), which concluded that certain conditions at Cheltenham and Hickey violated the constitutional and federal statutory rights of juveniles confined there. The United States recognizes that its letter notifying the State of Maryland of the results of its investigation focused, by virtue of statutory requirements, on conditions the United States believed to violate federal law and, therefore, did not discuss positive aspects of the State’s facilities.
D. The State of Maryland does not admit that it has violated the federal rights of juveniles confined at Cheltenham or Hickey, but remains firmly committed to enhancing conditions at its residential facilities.
E. The parties to this Settlement Agreement (“Agreement”) are the United States Department of Justice and the State of Maryland, the Maryland Department of Juvenile Services, and their successors, contractors and agents. While not named in this agreement, the parties recognize that the cooperation of the Maryland State Department of Education and other state agencies will be required to comply with this Agreement.
F. The State of Maryland represents that it has already taken measures to implement many provisions of this Agreement, most notably by dramatically reducing the population at
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Cheltenham and by assuming control of and investing resources at Hickey. The State is further enhancing these facilities by adding millions of dollars in budgetary resources for these facilities in State Fiscal Year 2006, which begins on July 1, 2005. The United States applauds the State’s efforts to address proactively the measures outlined in the Agreement, but has not yet had the opportunity to assess these efforts.
G. The State has cooperated and negotiated in good faith with the United States regarding its investigation of Cheltenham and Hickey, provided the United States and its consultants full access to the toured facilities and documents, and was receptive to the on-site recommendations of the Department of Justice’s consultants.
H. In entering into this Agreement, the parties have given substantial consideration to its impact on public safety and the operation of the juvenile justice system in Maryland, and believe that this Agreement is narrowly drawn to provide the least intrusive means necessary to address the issues identified in the United States' investigation without adversely affecting the State's significant interest in protecting the safety of the citizens of Maryland through the use of secure juvenile facilities.
I. The United States agrees that once youth are admitted to State facilities, the State of Maryland has a right to impose policies and procedures for the protection of the public, the staff of DJS, and the juveniles within the State's custody. The parties agree that the relief provided in this Agreement extends no further than is necessary to ensure protection of youths' federal rights, and that so long as the State's policies and procedures are in accordance with federal laws and meet constitutional standards, the State of Maryland has the right to determine the philosophy by which it shall operate its juvenile justice system.
J. This Agreement is intended to enhance the conditions at the facilities. This Agreement is not intended to be used to prove deficiencies in the level of care provided by the State at any of the facilities in any proceeding other than an enforcement action between the parties.
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K. It is not the intent of the DOJ to usurp the role of the State in determining how best to achieve constitutional standards, and this Agreement will be construed consistent with the principles of Federalism, to which the DOJ is firmly committed.
L. The provisions of this Agreement shall apply to all youth in the facilities.
II. DEFINITIONS
In this Agreement, the following definitions apply:
A. “Cheltenham” means the Cheltenham Youth Facility, located at 11001 Frank Tippett Road, Cheltenham, Maryland, and any facility that may be built to replace or supplement that facility.
B. “DJS” means the Maryland Department of Juvenile Services.
C. “DOJ” means the United States Department of Justice, which represents the United States in this matter.
D. “Effective Date” means the last date on which the Agreement has been signed by counsel or a party.
E. “The facilities” means Cheltenham and Hickey collectively.
F. “Hickey” means the Charles H. Hickey, Jr. School, located at 2400 Cub Hill Road, Baltimore, Maryland, and any facility that may be built to replace or supplement that facility, but specifically excludes the New Directions program which, while located upon the grounds of Hickey, is licensed by the Maryland Department of Health and Mental Hygiene (“DHMH”) as a residential treatment center, is established pursuant to the State’s Health Plan for Facilities and Services, is regulated by the DHMH pursuant to COMAR 10.24.07.02(3), and was not included in the tours of the facility or in the investigation undertaken by the United States.
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G. “IEP” means Individualized Education Program as defined by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490, and the regulations promulgated thereunder.
H. “Include” or “including” means “include, but not be limited to” or “including, but not limited to.”
I. “Implement” means to give practical effect and to achieve actual fulfillment by concrete measures, including appropriate training of relevant staff.
J. “OPRA” means the Maryland Department of Juvenile Services’ Office of Professional Responsibility and Accountability.
K. “Qualified medical professional” means a physician, nurse or other medical provider licensed and sufficiently trained to provide the services he or she undertakes to provide.
L. “Qualified mental health professional” means a mental health care provider licensed and sufficiently trained to provide the services he or she undertakes to provide.
M. “Quality Assurance Program” means a system of selfaudit and improvement to assess the implementation and effectiveness of all remedies instituted pursuant to this Agreement, to identify deficits that may exist, and to effectuate new measures to cure deficits identified.
N. “Seclusion” means placement of a youth alone in a locked room.
O. “Secretary” means the Secretary of the Maryland Department of Juvenile Services.
P. “State” means the State of Maryland and the Maryland Department of Juvenile Services, and their successors, contractors and agents.
Q. “Suicide Precautions” means any level of watch, observation or measures to prevent self-harm.
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R. “Train” means sufficiently instruct in the skills addressed, including ongoing assessment of mastery of instructional material.
S. “Youth” means any juvenile or juveniles residing at any of the facilities during the operation of this Agreement.
III. SUBSTANTIVE REMEDIAL MEASURES
A. IN GENERAL
The use of the future tense in this Section should not be construed to indicate that the State has not already put into place many of the measures set out in this Section. Rather, the use of the future tense in this Section indicates that these remedies are forward-looking and that the State intends not only to continue with those measures it has already undertaken, but to work diligently to identify problems and fashion solutions to them at the facilities. The DOJ has not had the opportunity to assess whether these measures have been implemented or are effective. Compliance with the provisions of this Agreement shall be measured solely by the Monitoring Team as set forth in Section V A. below.
B. PROTECTION FROM HARM
i. Protection from Abuse The State shall take all reasonable measures to assure that youth are protected from violence and other physical or sexual abuse by staff and other youth.
ii. Reporting of Staff Misconduct, Youth-on-Youth Violence, and Staff Uses of Force The State shall develop and implement appropriate policies, procedures and practices to enhance the reporting to appropriate individuals of incidents of staff misconduct, youth-on-youth violence and staff uses of force, and to provide that such reporting may be done through confidential means, without fear of retaliation for making the report. The State shall document and report appropriately and with sufficient detail all such incidents.
iii. Health Care Inquiries Regarding Injury A nurse or other health care provider shall question, outside the hearing of other staff or youth, if appropriate, each youth who
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reports to the infirmary with an injury, regarding the cause of the injury. If, in the course of the youth’s infirmary visit, a health care provider suspects abuse, that health care provider shall immediately:
a. take all appropriate steps to preserve evidence of the injury (e.g., photograph the injury and any other physical evidence);
b. if a report has not already been made, report the suspected abuse to the appropriate authorities;
c. document adequately the matter in the youth’s medical record; and
d. if one has not already been initiated, complete an incident report.
iv. Uses of Force The State shall develop and implement comprehensive policies, procedures and practices governing uses of force to assure that the least amount of force necessary is used on youth for the safety of staff, youth residents, and visitors.
v. Senior Management Review The State shall develop and implement a system for review by senior management of uses of force, alleged child abuse and youth-on-youth violence.
vi. Staff Training in Behavior Management, DeEscalation and Crisis Intervention The State shall develop and implement a curriculum for appropriate competency-based staff training in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention. Such training shall be completed before staff may work independently with youth.
vii. Behavior Management Program The State shall develop and implement an effective behavior management program at the facilities throughout the day, including during school time and shall continue to implement the behavior management plan. The State shall develop and implement policies, procedures and practices under which mental health staff provide regular consultation regarding behavior management to direct
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care and other staff involved in the behavior management plans for youth receiving mental health services, and shall develop a mechanism to assess the effectiveness of interventions utilized.
viii. Structured Rehabilitative Programming The State shall provide appropriate structured rehabilitative programming to youth in the facilities.
ix. Staffing The State shall employ sufficient numbers of adequately trained direct care and supervisory staff to supervise youth safely, protect youth from harm, and allow youth reasonable access to: medical, mental health, education services, structured rehabilitative programming, and adequate time spent in out-of-room activities, and that it shall continue to provide sufficient numbers of staff at the facilities.
x. Security Systems The State shall adequately maintain housing unit security systems, including individual room door locks.
xi. Restraint Practices The State shall utilize only safe methods of restraint. The State shall take all reasonable measures to prevent the use of unsafe methods of restraint, including any restraint method that involves placing downward pressure on the torso or neck, or otherwise presents a risk of asphyxia or other serious injury.
xii. Seclusion The State shall develop and implement policies, procedures and practices for seclusion to be used only when appropriate and in an appropriate manner, and to document fully its use.
xiii. Due Process The State shall provide youth confined in seclusion for more than 24 hours with due process, including a hearing by an impartial official. The State shall develop and implement a due process procedure for disciplinary matters.
xiv. Access to Toilets The State shall develop and implement written procedures and practices at the facilities to provide all youth with timely access to toilets as needed.
xv. Admissions Intake and Orientation The State shall develop and implement policies, procedures and practices
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to establish a consistent, orderly admissions intake system, conducive to gathering necessary information about youth, disseminating information to staff providing services and care for youth, and maintaining their safety. The State shall take all reasonable measures to assure that each youth entering the facility receives an effective orientation that includes: simple directions for reporting abuse, assures youth of their right to be protected from harm and from retaliation for reporting allegations of abuse, and which clearly sets forth the rules youth must follow at the facility, explains how to access medical and mental health care and the grievance system, and provides other information pertinent to the youth’s participation in facility programs.
xvi. Employment Practices The State shall only employ individuals fit to work with youth residents at the facilities. The State shall utilize all reasonable measures to determine applicants’ fitness to work in a juvenile justice facility prior to hiring employees for positions at the facilities.
xvii. Classification The State shall develop and implement a classification system that places youth appropriately and safely within the facility, and provides for reclassification in appropriate circumstances.
C. SUICIDE PREVENTION
i. Implementation of Policy The State shall take all reasonable measures to assure that all aspects of its Suicide Prevention Policy are implemented.
ii. Suicide Risk Assessments Timely suicide risk assessments, using reliable assessment instruments, shall be conducted at the facilities:
a. for all youth exhibiting behavior which may indicate suicidal ideation, and
b. when determining whether to place a youth on suicide precautions or change the level of suicide precautions. Suicide risks assessment shall be conducted by a qualified mental health professional. If no such
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professional is available to conduct the assessment due to exceptional circumstances, it shall be conducted by another staff member who has received specific training in conducting such assessments. Youth shall not be removed from suicide precautions by anyone other than a qualified mental health professional.
iii. Mental Health Response to Suicidal Youth Youth at the facilities who demonstrate suicidal ideation or attempt self-harm shall receive timely and appropriate mental health care by qualified mental health professionals. This care shall include helping youth develop skills to reduce their suicidal ideations or behaviors, and providing youth discharged from suicide precautions with adequate follow-up treatment.
iv. Supervision of Youth at Risk of Self-Harm The State shall sufficiently supervise newly-arrived youth, youth in seclusion and other youth at heightened risk of self-harm to maintain their safety.
v. Housing for Youth at Risk of Self-Harm The State shall take all reasonable measures to assure that all housing for youth at heightened risk of self-harm, including holding rooms, seclusion rooms and housing for youth on suicide precautions, is free of identifiable hazards that would allow youth to hang themselves or commit other acts of self-harm.
vi. Restrictions for Suicidal Youth Youth in the facilities on suicide precautions shall not be restricted in their access to programs and services more than safety and security needs dictate.
vii. Documentation of Suicide Precautions The following information shall be thoroughly and correctly documented, and provided to all staff at the facilities who need to know such information:
a. the times youth are placed on and removed from precautions;
b. the levels of precautions on which youth are maintained;
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c. the housing location of youth on precautions;
d. the conditions of the precautions; and
e. the times and circumstances of all observations by staff monitoring the youth.
viii. Access to Emergency Equipment Direct care staff at the facilities shall have immediate access to appropriate equipment to intervene in the event of an attempted suicide by hanging.
ix. Suicide and Suicide Attempt Review Appropriate staff shall review all completed suicides and serious suicide attempts at the facilities for policy and training implications.
D. MENTAL HEALTH
i. Adequate Treatment The State shall provide adequate mental health and substance abuse care and treatment services (including timely emergency services) and an adequate number of qualified mental health professionals. Psychiatric care shall be appropriate to the adolescent population of the facilities and shall be integrated with other mental health services.
ii. Establishment of director of mental health The State shall designate a director of mental health. The director shall meet minimum standards, as specified by the State, to oversee the mental health care and rehabilitative treatment of youth at the facilities by performing the tasks required by this Agreement, including:
a. oversight of mental health care in the facilities, including monitoring the performance of psychologists, counselors and psychiatrists, and developing and implementing policies and training programs;
b. monitoring of whether staffing and resources are sufficient to provide
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adequate mental health care and rehabilitative treatment services to the facilities’ youth and to comply with this Agreement; and
c. development and implementation of a quality assurance program for mental health care.
iii. Admissions Consultation and Referral If a youth presents at admission to a facility with mental health needs which cannot be met safely at the facility, the State shall transfer the youth promptly to appropriate settings that meet the youth’s needs. Qualified mental health professionals shall be readily available for timely consultations regarding admissions decisions.
iv. Mental Health Screening The State shall develop and implement policies, procedures and practices for all youth admitted to the facilities to be screened comprehensively by qualified mental health professionals in a timely manner utilizing reliable and valid measures. If, due to exceptional circumstances, no such professional is on-site to conduct the screening, it shall be conducted by another staff member who has received specific training in conducting such assessments and reviewed by a qualified mental health professional.
v. Mental Health Assessment Youth in the facilities whose mental health screens indicate the possible need for mental health services shall receive comprehensive, appropriate and up-to-date assessments by qualified mental health professionals.
vi. Treatment Plans Youth in the facilities in need of mental health and/or substance abuse treatment shall have an adequate treatment plan, including a behavior management plan, as appropriate, which shall be implemented in the facilities.
vii. Mental Health Involvement in Housing Decisions The State shall adequately consider mental health issues in providing safe housing for youth in the facilities.
viii. Informed Consent Consistent with State law, the State shall, prior to obtaining consent for the
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administration of psychotropic medications, provide youth and, as appropriate, their parents or guardians with information regarding the goals, risks, benefits and potential side effects of such medications offered for their treatment, as well as an explanation of what the consequences of not treating with the medication might be, and whether a recommendation is made in a dosage or manner not recognized by the United States Food and Drug Administration.
ix. Mental Health Medications The State shall take all reasonable measures to assure that psychotropic medications are prescribed, distributed, and monitored properly and safely. The State shall provide regular training to all health and mental health staff on current issues in psychopharmacological treatment, including information necessary to monitor for side effects and efficacy.
x. Mental Health and Developmental Disability Training for Direct Care Staff The State shall develop and implement strategies for providing direct care and other appropriate staff with training on mental health and developmental disabilities sufficient for staff to understand the behaviors and needs of youth residents and supervise them appropriately.
xi. Transition Planning The State shall take all reasonable measures to assure that staff create appropriate transition plans for youth leaving the facilities. Such plans shall appropriately consider each youth’s length of stay and subsequent placement. Plans shall include providing the youth and his or her parents or guardian with information regarding mental health resources available in the youth's home community; making referrals to such services when appropriate; providing appropriate orders for the continuation of prescribed medications; and providing assistance in making initial appointments with service providers.
E. MEDICAL CARE
i. Appropriate Care The State shall provide adequate, appropriate and timely medical and dental care to meet the individualized needs of youth, including treatment of acute and chronic medical conditions. The State shall provide
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sufficient numbers of qualified medical professionals to meet these needs.
ii. Medical Director A qualified, licensed physician shall supervise clinical practices and medical policy development, and shall participate in quality assurance and infection control programs at the facilities.
iii. Health Assessments The State shall conduct adequate health assessments for youth upon entry or re-entry to the facilities.
iv. Medication Administration The State shall develop and implement standards for medication administration, and shall train all staff responsible for medication administration to prevent medication discontinuity and errors.
v. Medical and Mental Health Records Retrieval The State shall make all reasonable efforts to assure that the facilities obtain available pertinent youth records regarding medical and mental health care.
vi. Medical and Mental Health Record System The State shall develop and implement standards, procedures and practices to create an integrated medical and mental health record system, and shall maintain the system.
F. SPECIAL EDUCATION
i. Provision of Required Special Education The State shall provide all eligible youth confined at the facilities special education services as required by the IDEA, 20 U.S.C. §§1400-1490, and regulations promulgated thereunder, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and regulations promulgated thereunder.
ii. Supervision of Education The State shall designate a director of education within the facilities. The director shall meet minimum standards as specified by the State. The State shall provide the director with sufficient staff and resources to perform the tasks required by this Agreement, including:
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a. overseeing the special education programming in the facilities, including development and implementation of policies and training programs;
b. monitoring whether special education staffing and resources are sufficient to provide adequate special education services to qualified youth at the facilities and to comply with this Agreement;
c. developing and implementing a quality assurance program for special education services; and
d. developing and implementing an adequate vocational education program for all eligible youth.
iii. Screening and Identification Qualified professionals shall provide prompt and adequate screening of facility youth for special education needs, including identifying youth who are receiving special education in their home school districts and those eligible to receive special education services who have not been so identified in the past.
iv. Parent, Guardian and Surrogate Involvement The State shall appropriately notify and involve parents, guardians or surrogate parents in evaluations, eligibility determinations, Individualized Education Programs (“IEPs”), placement and provision of special education services.
v. Individualized Education Programs The State shall develop and/or implement an adequate IEP, as defined in 34 C.F.R. § 300.340, for each youth who qualifies for an IEP. Consistent with the requirements of 34 C.F.R. § 300.343(b)(2), within 30 days of a determination that a youth is eligible for special education and related services, the State shall conduct an IEP meeting to develop an IEP. As part of satisfying this requirement, DJS must conduct required re-evaluations of IEPs, adequately provide and document all required instructional services, conduct appropriate assessments and comply with requirements regarding student and teacher participation in the IEP process. Mental health staff shall be involved in
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development of IEPs of all youth with identified mental illness. Goals and objectives shall be stated in realistic and measurable terms.
vi. Vocational Education The State shall develop and implement adequate vocational education services for all eligible youth.
vii. Staffing The director of education shall provide adequate education staffing.
viii. Section 504 Plans The State shall develop and implement appropriate Section 504 plans for all eligible youth.
G. FIRE SAFETY
Fire Safety Precautions The State shall develop and implement adequate fire safety precautions. The precautions shall include appropriate maintenance of fire suppression and detection equipment and maintenance of doors and door locks so that they may be opened in the event of fire.
IV. COMPLIANCE AND QUALITY ASSURANCE
A. Document Development and Revision The State shall revise and/or develop policies, procedures, protocols, training curricula, and practices as necessary to make them compliant with the provisions of this Agreement. The State shall revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreement.
B. Document Review Written State policies, procedures, and protocols that address the provisions of this Agreement regarding the following topics shall be submitted to the Monitoring Team for review and approval within ninety (90) calendar days of the execution of this Agreement: use of force/crisis management; use of restraints and seclusion; mental health, medical and dental screening and assessment; treatment planning; and medication administration and monitoring. The State shall supply the DOJ with copies of all such policies, procedures, and protocols when it submits them to the Monitoring Team. The Monitoring Team shall approve and/or suggest revisions to these policies, procedures, and protocols within
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thirty (30) days of receipt, unless a longer period is agreed upon by the parties.
C. Quality Assurance Programs The State shall develop and implement quality assurance programs for protection from harm, suicide prevention, mental health care, medical care, special education services, and fire safety.
D. Corrective Action Plans DJS shall develop and implement policies and procedures as necessary to address problems that are uncovered during the course of its quality assurance activities. The State shall develop and implement corrective action plans to address these problems.
V. MONITORING AND ENFORCEMENT
A. Monitoring Team Selection The State in its discretion may undertake to provide services consistent with “best practices” recommended by leading experts in the field of juvenile justice. However, the parties contemplate active monitoring solely for compliance with constitutional and federal statutory standards.
i. Members Within 45 days after the effective date of this Agreement, the State and DOJ shall together select a Monitoring Team. Members of the Monitoring Team shall include experts in the fields of juvenile justice/youth confinement practices/protection from harm, mental health care, medical care, education, and fire safety. The Monitoring Team shall have full authority to assess, review and report independently on the State’s implementation of and compliance with the provisions of this Agreement.
a. The parties shall choose one Monitoring Team Member to be the Monitoring Team Leader, who shall be responsible for coordinating site visits to the facilities, arranging for appropriate informationsharing between Monitoring Team Members, and for preparing the reports to the parties as required in this Agreement.
b. If the parties are unable to agree on any Monitoring Team Member or on the
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appointment of the Monitoring Team Leader within 45 days after the effective date of this Agreement, each party shall, within 60 days after the effective date of this Agreement, submit two names of qualified candidates for the position, along with resumes or curricula vitae and cost proposals, to dispute resolution as provided in Section VII N. of this Agreement.
ii. Non-delegation of Responsibilities The Monitors shall be considered key personnel; their responsibilities may not be delegated. The Monitors may employ a staff sufficient to complete their duties efficiently, but compensation for such staff shall be paid by the Monitors and a budget for same must be included in the contract entered into with the State.
iii. Independence of Monitoring Team Neither party, nor any employee or agent of either party, shall have any supervisory authority over the Monitoring Team’s activities, reports, findings, or recommendations. Members of the Monitoring Team may be terminated if both parties agree and upon good cause shown. Good cause shall include any violation of State or federal law which reasonably calls into question the Monitoring Team member’s fitness to continue serving as a member of the Monitoring Team. In the event the parties do not agree upon the need for termination, the parties agree to submit the resolution of this matter to dispute resolution as described in Section VII N. of this Agreement.
iv. Costs The cost for the Monitoring Team shall be borne by the State, as set forth in the contracts executed with members of the Monitoring Team.
v. Replacement of Monitoring Team Members If a member of the Monitoring Team is terminated pursuant to section iii above, or becomes unavailable, the parties shall determine jointly whether a replacement is needed, and if so, jointly select a replacement within thirty (30) days of the member’s unavailability. In the event that the parties do not agree upon the need for or identity of a replacement, the parties agree to submit the decision to dispute resolution as provided in Section VII N. of this Agreement.
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B. Monitoring Team’s Access The Monitoring Team shall have full and complete access to the facilities, records relevant and appropriate for the effective monitoring of this Agreement, staff, and residents. The Monitoring Team shall coordinate the timing of its on-site facility visits and requests for documents so as to minimize disruption to facility operations and State employee work functions. The Secretary shall direct all employees to cooperate fully with the Monitoring Team. All non-public information obtained by the Monitoring Team shall be maintained in a confidential manner. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the State may assert, including those recognized at common law and created by statute, rule or regulation against any other person or entity with respect to the disclosure of any information.
C. Monitoring Team’s Communications Members of the Monitoring Team may communicate with the parties as necessary to monitor the Agreement effectively.
D. Role of the Independent Juvenile Justice Monitor The State has created an Independent Juvenile Justice Monitor (IJJM) with duties to evaluate and report on conditions within the facilities. Beginning on the effective date of this Agreement, the IJJM shall provide to the DOJ and the Monitoring Team the data and final reports produced by the IJJM in the course of performing his/her statutory duties. The Monitoring Team may request from the IJJM such additional data as necessary to avoid duplication and unnecessary interference with the operation of the facilities. Nothing in this section shall be construed to limit the Monitoring Team in ascertaining and reporting facts relevant to the State’s compliance with the terms of this Agreement.
E. Limitations on Public Disclosures by Monitoring Team Members
i. Prohibition on Public Statements; Confidentiality Agreement Unless required by law, or as provided in this Agreement, neither the Monitoring Team members nor any of their staff shall make any public statements or issue findings with regard to any information provided to the Monitoring Team or the Monitoring Team’s staff pursuant to this Agreement. Each member
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of the Monitoring Team shall execute a confidentiality agreement limiting disclosure of information obtained, consistent with law, to protect the privacy of the children served in the facilities.
ii. Limits on Testimony Except when subject to compulsory process or for the purposes of testifying in litigation between the parties, no member of the Monitoring Team nor any member of their staff may testify in any public forum or legislative proceeding with regard to any matter or subject that he or she may have learned as a result of his or her participation on the Monitoring Team.
iii. Conflicts of Interest Unless such conflict is waived by both parties, members of the Monitoring Team shall not accept employment or provide consulting services that would present a conflict of interest with their responsibilities under this Agreement including being retained (on a paid or unpaid basis) by any current or future litigant or claimant or such litigant’s or claimant’s attorney, in connection with a claim or suit against the State or its departments, officers, agents or employees concerning matters relevant to this Agreement.
F. Monitoring Team’s Reports The Monitoring Team shall provide the parties with reports describing the extent to which the State has substantially complied with each substantive provision of the Agreement and the steps taken by DJS to implement the Agreement. Such reports shall be issued semiannually. The first report shall issue six months after the effective date of this Agreement, unless the parties jointly agree otherwise. The reports shall be provided to the parties in draft form for comment at least four weeks prior to their issuance. Comments/responses of the State and the DOJ shall be included separately in the reports. These reports shall be written with due regard for the privacy interests of individual youth and staff and the interest of the State and DJS in protecting against disclosure of non-public information. Monitoring Team reports shall not include names or personally identifying information of youth. Where Monitoring Team members identify individual events or concerns about this Agreement that involve particular youth, they shall employ alternative means (other than the Monitoring Team reports) to inform the parties of the identities of the involved youth.
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G. Monitoring Team’s Budget and Staff The Monitoring Team’s budget shall be limited as set forth in their contracts with the State. The Monitoring Team shall be responsible to compensate any and all staff deemed necessary to allow the Monitoring Team to carry out the responsibilities described in this Agreement without exceeding their contractual amounts.
VI. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
A. DOJ Access The DOJ, upon reasonable notice to the State’s counsel, shall have access to the facilities, youth and staff records, and staff and residents of the facilities. The DOJ shall have the right to conduct confidential interviews with staff, residents, and former residents. The United States shall abide by the Confidentiality Agreement reached by the parties in January 2003. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the State may assert, including those recognized at common law and created by statute, rule or regulation against any other person or entity with respect to the disclosure of any information.
B. State Response to DOJ Questions Within a reasonable time following receipt of written questions from the DOJ concerning the State’s compliance with this Agreement, DJS shall provide the DOJ with written answers and any requested documents regarding the State’s compliance with the requirements of this Agreement. Such inquiries and document requests will be coordinated with the activities of the Monitoring Team.
C. State Documentation of Compliance The State shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. The State shall also maintain (so long as this Agreement remains in effect) any and all records required by or developed under this Agreement.
D. Department of Social Services Investigative Files Because child abuse investigation records of the Departments of Social Services in Maryland are confidential under State law and not considered by DJS in conducting its own independent investigation and addressing or remedying allegations of child abuse by staff, neither the Monitoring Team nor the United States shall seek such records. No representative of the State (including the Independent Juvenile Justice Monitor) shall
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release such records to the United States or the Monitoring Team. The ultimate determination by the Department of Social Services that alleged child abuse is indicated, unsubstantiated or ruled out, if it is received by DJS, may be obtained from DJS by the United States and/or the Monitoring Team.
VII. IMPLEMENTATION AND TERMINATION
A. Information to Employees The State shall provide information and training so that all current and future employees at the facilities understand and implement the terms of this Agreement.
B. Implementation The State shall implement all measures reasonably necessary to achieve substantial compliance with this Agreement.
C. Integration This Agreement shall constitute the entire integrated Agreement of the parties. No prior or contemporaneous communications, oral or written, will be relevant for purposes of determining the meaning of any provisions herein.
D. Enforcement This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, and successors.
E. Rule 41 Conditional Dismissal Upon execution of this Settlement Agreement, the DOJ shall file a complaint in the United States District Court for the District of Maryland, Northern Division, and file contemporaneously a Joint Motion for Conditional Dismissal of the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). A copy of this Agreement shall be attached to the Joint Motion for Conditional Dismissal and that motion shall: (1) request that the court dismiss the complaint upon the passage of three (3) years from the date of its filing or the State’s earlier substantial compliance with the terms of this Agreement; (2) request that the court place the case on its inactive docket; and (3) retain jurisdiction over the case until three (3) years have passed or an earlier final dismissal is entered. The parties expressly declare that this provision shall not be interpreted to provide for active judicial supervision.
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F. Notice to State and Opportunity to Cure If the DOJ believes that the State has failed to fulfill a significant obligation under this Agreement, the DOJ will, prior to seeking judicial action to enforce the terms of this Agreement, give written notice of the failure to the State. The State shall have sixty days from the date of such notice to cure the failure, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, and provide the DOJ with sufficient proof of its cure. At the end of the sixty day period, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, in the event that the DOJ determines that the failure has not been cured, the DOJ may seek judicial action without further notice. However, in case of an emergency posing an immediate threat to the health or safety of youths, the United States shall notify the State but may omit any period for cure described herein, before seeking judicial action. The DOJ commits to work in good faith with the State to avoid enforcement actions.
G. State’s Reservation of Defenses If the United States seeks judicial enforcement of this Agreement, the State reserves the right to raise as a defense exigent circumstances in the State, including, but not limited to: economic recession, necessary diversion of resources and personnel in the event of widespread threat to public health, or act of war.
H. United States’ Position on State’s Reservation of Defenses Nothing in this Agreement shall be construed as an acknowledgment or admission by the United States that any defense raised by the State relieves the State of its obligation under this Agreement.
I. Integration This Agreement is the completely integrated agreement between the parties. The Agreement resolves the United States’ current investigation of Cheltenham and Hickey pursuant to CRIPA and Section 14141. The United States shall not seek additional measures or requirements in enforcing this Agreement.
J. Non-waiver Failure by any party to enforce this entire agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions in this Agreement.
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K. Legal Standard To the extent that the State’s implementation of any provision of this Agreement requires the exercise of professional judgment, the standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982), shall be applied.
L. Technical Assistance The United States shall provide technical assistance to the State by assisting in identifying potential grants and other opportunities for low-cost or costfree training or by providing consultants to train senior staff in the areas of Adolescent Behaviors, De-Escalation Techniques, and Identification and Recognition of Mental Health Needs in Facility Youth, and Integration of Mental Health Services into Direct Care Service Delivery. This technical assistance will be provided in a “train the trainers” format. Should the DOJ engage consultants to tour the facilities, the DOJ shall provide the State with an opportunity to conduct exit interviews with the consultants and with copies of the consultants’ reports, if such reports are produced.
M. Agreement Coordinator The State shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement.
N. Dispute Resolution The parties recognize that there may be areas about which they can not easily agree during the course of implementation of this Agreement. In order to address this possibility, the parties agree to employ, when necessary, the services of a neutral party and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. The parties agree to first look to neutral mediators who may be available at no cost, such as ones selected with the assistance of the Federal Mediation and Conciliation Service or available with third party grant funding through the Maryland Mediation and Conflict Resolution Office. Should costs be incurred for a mediator, the parties agree to share equally such costs.
O. Termination
i. Three Year Time Frame This Agreement shall terminate definitively and unconditionally no later than three (3) years from the effective date.
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ii. Section-by-Section and Facility-by-Facility Substantial Compliance The Agreement may end on a section-bysection, and facility-by-facility basis earlier than three (3) years from the effective date if the State has substantially complied with the provisions of that section of the Agreement at a facility for at least eighteen (18) months.
a. Burden of Proving Substantial Compliance The burden shall be on the State to demonstrate to the appropriate member or members of the Monitoring Team that the State has complied substantially with the Agreement. A finding of substantial compliance by the Monitoring Team may not be unreasonably withheld.
b. Substantial Compliance Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
c. Standard for Substantial Compliance The parties agree that the standards against which substantial compliance will be monitored are those that are constitutionally required and required by Federal statute, as provided in Section V A. The State’s unilateral implementation of best practices will not modify the standard.
P. Defense of Agreement The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court shall be sought.
Q. Unforeseen Delay If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the State shall notify the DOJ in writing within a reasonable time after the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure.
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R. Non-Retaliation No person reporting conditions which may constitute a violation of the laws or Constitution of the United States or this Agreement shall be subjected to retaliation in any manner for so reporting. See 42 U.S.C. § 1997d.
S. Subheadings All subheadings in this Agreement are written for convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
T. Severability In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.
FOR THE STATE:
/s/ Robert L. Ehrlich, Jr.
__________________________ ROBERT L. EHRLICH, JR. Governor State of Maryland
_/_s_/ _K_e_nn_e_t_h _C_._M_o_n_ta_g_u_e,__J_r._____ KENNETH C. MONTAGUE, JR. Secretary of Juvenile Services
APPROVED FOR LEGAL SUFFICIENCY:
/s/ Robert T. Fontaine
__________________________ ROBERT T. FONTAINE Assistant Attorney General State of Maryland ====================================================================
Page 25 of 26 June 29, 2005

FOR THE UNITED STATES:

/s/ Allen F. Loucks
ALLEN F. LOUCKS United States Attorney District of Maryland

/s/ Bradley J. Schlozman BRADLEY J. SCHLOZMAN Acting Assistant Attorney General Civil Rights Division

/s/ Shanetta Y. Cutlar SHANETTA Y. CUTLAR Chief Special Litigation Section

/s/ Daniel H. Weiss DANIEL H. WEISS Deputy Chief Special Litigation Section JOSHUA DELANEY Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255

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 Amended Settlement Agreement Between the United States of America
and the State of Maryland Regarding Conditions at Three
Juvenile Justice Facilities
Originally Filed in Civil № JFM 05 CV 1772 in the United States District Court for the District of Maryland: June 30, 2005; As Amended: May 17, 2007
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I. INTRODUCTION
A. On August 30, 2002, the United States notified State of Maryland officials of its intent to investigate conditions of confinement at the Cheltenham Youth Facility (“Cheltenham”) in Cheltenham, Maryland and the Charles H. Hickey, Jr. School (“Hickey”) in Baltimore, Maryland, pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 and the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). Following a written invitation on June 28, 2005 from then-Secretary of Juvenile Services Kenneth C. Montague, Jr., to investigate the Baltimore City Juvenile Justice Center (“BCJJC”), the United States similarly notified the State with respect to BCJJC on June 30, 2005.
B. Between April 28 and June 12, 2003, the United States toured Cheltenham and Hickey with consultants in the fields of juvenile justice, medical care, mental health care, education and sanitation. At the time of these tours and until April 1, 2004, Hickey was operated by a for-profit corporation. The United States conducted similar tours at BCJJC in September and October, 2005.
C. On April 9, 2004, the United States issued a findings letter pursuant to 42 U.S.C. § 1997 (a)(1), which concluded that certain conditions at Cheltenham and Hickey violated the constitutional and federal statutory rights of juveniles confined there. The United States recognizes that its letter notifying the State of Maryland of the results of its investigation focused, by virtue of statutory requirements, on conditions the United States believed to violate federal law and, therefore, did not discuss positive aspects of the State’s facilities. On August 7, 2006, the United States issued a separate findings letter regarding BCJJC, which the United States recognizes is limited in the same way.
D. The State of Maryland does not admit that it has violated the federal rights of juveniles confined at Cheltenham or Hickey, but remains firmly committed to enhancing conditions at its residential facilities. The State denies that it has violated the federal rights of juveniles confined at BCJJC.
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E. The parties to this Settlement Agreement (“Agreement”) are the United States Department of Justice and the State of Maryland, the Maryland Department of Juvenile Services, and their successors, contractors and agents. While not named in this agreement, the parties recognize that the cooperation of the Maryland State Department of Education and other state agencies will be required to comply with this Agreement.
F. At the time of the execution of the original Settlement Agreement, the State of Maryland represented that it had already taken measures to implement many provisions of this Agreement, most notably by dramatically reducing the population at Cheltenham and by assuming control of and investing resources at Hickey and by adding millions of dollars in budgetary resources for these facilities in State Fiscal Year 2006, which began on July 1, 2005. The United States applauded the State’s efforts to address proactively the measures outlined in the Agreement, but contended that it had not yet had the opportunity to assess these efforts. With respect to BCJJC, the State has made significant changes at the facility since the time of the United States’ tour, which the United States recognized in its Findings Letter.
G. The State has cooperated and negotiated in good faith with the United States regarding its investigation of Cheltenham and Hickey, provided the United States and its consultants full access to the toured facilities and documents, and was receptive to the on-site recommendations of the Department of Justice’s consultants. At BCJJC, the State similarly cooperated with the United States and in some cases made immediate corrections to address concerns raised on-site by the United States’ consultants.
H. In entering into this Agreement, the parties have given substantial consideration to its impact on public safety and the operation of the juvenile justice system in Maryland, and believe that this Agreement is narrowly drawn to provide the least intrusive means necessary to address the issues identified in the United States' investigation without adversely affecting the State's significant interest in protecting the safety of the citizens of Maryland through the use of secure juvenile facilities.
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I. The United States agrees that once youth are admitted to State facilities, the State of Maryland has a right to impose policies and procedures for the protection of the public, the staff of DJS, and the juveniles within the State's custody. The parties agree that the relief provided in this Agreement extends no further than is necessary to ensure protection of youths' federal rights, and that so long as the State's policies and procedures are in accordance with federal laws and meet constitutional standards, the State of Maryland has the right to determine the philosophy by which it shall operate its juvenile justice system.
J. This Agreement is intended to enhance the conditions at the facilities. This Agreement is not intended to be used to prove deficiencies in the level of care provided by the State at any of the facilities in any proceeding other than an enforcement action between the parties.
K. It is not the intent of the DOJ to usurp the role of the State in determining how best to achieve constitutional standards, and this Agreement will be construed consistent with the principles of Federalism, to which the DOJ is firmly committed.
L. The provisions of this Agreement shall apply to all youth in the facilities.
II. DEFINITIONS
In this Agreement, the following definitions apply:
A. “BCJJC” means the Baltimore City Juvenile Justice Center located at 300 North Gay Street, Baltimore, Maryland, and any facility that may be built to replace or supplement that facility.
A-1. “Cheltenham” means the Cheltenham Youth Facility, located at 11001 Frank Tippett Road, Cheltenham, Maryland, and any facility that may be built to replace or supplement that facility.
B. “DJS” means the Maryland Department of Juvenile Services.
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C. “DOJ” means the United States Department of Justice, which represents the United States in this matter.
D. “Effective Date” means the last date on which the Agreement has been signed by counsel or a party.
E. “The facilities” means, unless the context otherwise clearly limits, BCJJC, Cheltenham and Hickey collectively.
F. “Hickey” means the Charles H. Hickey, Jr. School, located at 2400 Cub Hill Road, Baltimore, Maryland, and any facility that may be built to replace or supplement that facility, but specifically excludes the New Directions program which, while located upon the grounds of Hickey, is licensed by the Maryland Department of Health and Mental Hygiene (“DHMH”) as a residential treatment center, is established pursuant to the State’s Health Plan for Facilities and Services, is regulated by the DHMH pursuant to COMAR 10.24.07.02(3), and was not included in the tours of the facility or in the investigation undertaken by the United States.
G. “IEP” means Individualized Education Program as defined by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490, and the regulations promulgated thereunder.
H. “Include” or “including” means “include, but not be limited to” or “including, but not limited to.”
I. “Implement” means to give practical effect and to achieve actual fulfillment by concrete measures, including appropriate training of relevant staff.
J. “OPRA” means the Maryland Department of Juvenile Services’ Office of Professional Responsibility and Accountability, or its successor.
K. “Qualified medical professional” means a physician, nurse or other medical provider licensed and sufficiently trained to provide the services he or she undertakes to provide.
L. “Qualified mental health professional” means a mental health care provider licensed and sufficiently trained to provide the services he or she undertakes to provide.
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M. “Quality Assurance Program” means a system of selfaudit and improvement to assess the implementation and effectiveness of all remedies instituted pursuant to this Agreement, to identify deficits that may exist, and to effectuate new measures to cure deficits identified.
N. “Seclusion” means placement of a youth alone in a locked room.
O. “Secretary” means the Secretary of the Maryland Department of Juvenile Services.
P. “State” means the State of Maryland and the Maryland Department of Juvenile Services, and their successors, contractors and agents.
Q. “Suicide Precautions” means any level of watch, observation or measures to prevent self-harm.
R. “Train” means sufficiently instruct in the skills addressed, including ongoing assessment of mastery of instructional material.
S. “Youth” means any juvenile or juveniles residing at any of the facilities during the operation of this Agreement.
III. SUBSTANTIVE REMEDIAL MEASURES
A. IN GENERAL
The use of the future tense in this Section should not be construed to indicate that the State has not already put into place many of the measures set out in this Section. Rather, the use of the future tense in this Section indicates that these remedies are forward-looking and that the State intends not only to continue with those measures it has already undertaken, but to work diligently to identify problems and fashion solutions to them at the facilities. The DOJ has not had the opportunity to assess whether these measures have been implemented or are effective. Compliance with the provisions of this Agreement shall be measured solely by the Monitoring Team as set forth in Section V. A. below.
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B. PROTECTION FROM HARM – CHELTENHAM AND HICKEY
i. Protection from Abuse The State shall take all reasonable measures to assure that youth are protected from violence and other physical or sexual abuse by staff and other youth.
ii. Reporting of Staff Misconduct, Youth-on-Youth Violence, and Staff Uses of Force The State shall develop and implement appropriate policies, procedures and practices to enhance the reporting to appropriate individuals of incidents of staff misconduct, youth-on-youth violence and staff uses of force, and to provide that such reporting may be done through confidential means, without fear of retaliation for making the report. The State shall document and report appropriately and with sufficient detail all such incidents.
iii. Health Care Inquiries Regarding Injury A nurse or other health care provider shall question, outside the hearing of other staff or youth, if appropriate, each youth who reports to the infirmary with an injury, regarding the cause of the injury. If, in the course of the youth’s infirmary visit, a health care provider suspects abuse, that health care provider shall immediately:
a. take all appropriate steps to preserve evidence of the injury (e.g., photograph the injury and any other physical evidence);
b. if a report has not already been made, report the suspected abuse to the appropriate authorities;
c. document adequately the matter in the youth’s medical record; and
d. if one has not already been initiated, complete an incident report.
iv. Uses of Force The State shall develop and implement comprehensive policies, procedures and practices governing uses of force to assure that the least amount of force
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necessary is used on youth for the safety of staff, youth residents, and visitors.
v. Senior Management Review The State shall develop and implement a system for review by senior management of uses of force, alleged child abuse and youth-on-youth violence.
vi. Staff Training in Behavior Management, DeEscalation and Crisis Intervention The State shall develop and implement a curriculum for appropriate competency-based staff training in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention. Such training shall be completed before staff may work independently with youth.
vii. Behavior Management Program The State shall develop and implement an effective behavior management program at the facilities throughout the day, including during school time and shall continue to implement the behavior management plan. The State shall develop and implement policies, procedures and practices under which mental health staff provide regular consultation regarding behavior management to direct care and other staff involved in the behavior management plans for youth receiving mental health services, and shall develop a mechanism to assess the effectiveness of interventions utilized.
viii. Structured Rehabilitative Programming The State shall provide appropriate structured rehabilitative programming to youth in the facilities.
ix. Staffing The State shall employ sufficient numbers of adequately trained direct care and supervisory staff to supervise youth safely, protect youth from harm, and allow youth reasonable access to: medical, mental health, education services, structured rehabilitative programming, and adequate time spent in out-of-room activities, and that it shall continue to provide sufficient numbers of staff at the facilities.
x. Security Systems The State shall adequately maintain housing unit security systems, including individual room door locks.
xi. Restraint Practices The State shall utilize only safe methods of restraint. The State shall take all reasonable
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measures to prevent the use of unsafe methods of restraint, including any restraint method that involves placing downward pressure on the torso or neck, or otherwise presents a risk of asphyxia or other serious injury.
xii. Seclusion The State shall develop and implement policies, procedures and practices for seclusion to be used only when appropriate and in an appropriate manner, and to document fully its use.
xiii. Due Process The State shall provide youth confined in seclusion for more than 24 hours with due process, including a hearing by an impartial official. The State shall develop and implement a due process procedure for disciplinary matters.
xiv. Access to Toilets The State shall develop and implement written procedures and practices at the facilities to provide all youth with timely access to toilets as needed.
xv. Admissions Intake and Orientation The State shall develop and implement policies, procedures and practices to establish a consistent, orderly admissions intake system, conducive to gathering necessary information about youth, disseminating information to staff providing services and care for youth, and maintaining their safety. The State shall take all reasonable measures to assure that each youth entering the facility receives an effective orientation that includes: simple directions for reporting abuse, assures youth of their right to be protected from harm and from retaliation for reporting allegations of abuse, and which clearly sets forth the rules youth must follow at the facility, explains how to access medical and mental health care and the grievance system, and provides other information pertinent to the youth’s participation in facility programs.
xvi. Employment Practices The State shall only employ individuals fit to work with youth residents at the facilities. The State shall utilize all reasonable measures to determine applicants’ fitness to work in a juvenile justice facility prior to hiring employees for positions at the facilities.
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xvii. Classification The State shall develop and implement a classification system that places youth appropriately and safely within the facility, and provides for reclassification in appropriate circumstances.
B-1. PROTECTION FROM HARM - BCJJC
i. Protection from Youth-on-Youth Violence The State shall take all reasonable measures to assure that youth are protected from violence by other youth.
ii. Reporting of Staff Youth-on-Youth Violence The State shall develop and implement appropriate policies, procedures and practices to enhance the reporting to appropriate individuals of incidents of youth-on-youth violence and to provide that such reporting may be done through confidential means, without fear of retaliation for making the report. The State shall document and report appropriately and with sufficient detail all such incidents.
iii. Senior Management Review The State shall develop and implement a system for review by senior management of youth-on-youth violence.
iv. Staff Training in Behavior Management, DeEscalation and Crisis Intervention The State shall develop and implement a curriculum for appropriate competency-based staff training in behavior management, de-escalation techniques, appropriate communication with youth, and crisis intervention. Such training shall be completed before staff may work independently with youth.
v. Behavior Management Program The State shall develop and implement an effective behavior management program at the facility throughout the day, including during school time and shall continue to implement the behavior management plan. The State shall develop and implement policies, procedures and practices under which mental health staff provide regular consultation regarding behavior management to direct care and other staff involved in the behavior management plans for youth receiving mental health services, and shall develop a mechanism to assess the effectiveness of interventions utilized.
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vi. Staffing The State shall employ sufficient numbers of adequately trained direct care and supervisory staff to supervise youth safely, protect youth from harm, and allow youth reasonable access to mental health, education services, structured rehabilitative programming, and adequate time spent in out-of-room activities, and that it shall continue to provide sufficient numbers of staff at the facility.
vii. Environmental Security Hazards The State shall remove and replace known environmental security hazards.
C. SUICIDE PREVENTION – CHELTENHAM AND HICKEY
i. Implementation of Policy The State shall take all reasonable measures to assure that all aspects of its Suicide Prevention Policy are implemented.
ii. Suicide Risk Assessments Timely suicide risk assessments, using reliable assessment instruments, shall be conducted at the facilities:
a. for all youth exhibiting behavior which may indicate suicidal ideation, and
b. when determining whether to place a youth on suicide precautions or change the level of suicide precautions. Suicide risks assessment shall be conducted by a qualified mental health professional. If no such professional is available to conduct the assessment due to exceptional circumstances, it shall be conducted by another staff member who has received specific training in conducting such assessments. Youth shall not be removed from suicide precautions by anyone other than a qualified mental health professional.
iii. Mental Health Response to Suicidal Youth Youth at the facilities who demonstrate suicidal ideation or attempt self-harm shall receive timely and appropriate mental health care by qualified mental health professionals. This care shall include helping youth develop skills to reduce their suicidal
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ideations or behaviors, and providing youth discharged from suicide precautions with adequate follow-up treatment.
iv. Supervision of Youth at Risk of Self-Harm The State shall sufficiently supervise newly-arrived youth, youth in seclusion and other youth at heightened risk of self-harm to maintain their safety.
v. Housing for Youth at Risk of Self-Harm The State shall take all reasonable measures to assure that all housing for youth at heightened risk of self-harm, including holding rooms, seclusion rooms and housing for youth on suicide precautions, is free of identifiable hazards that would allow youth to hang themselves or commit other acts of self-harm.
vi. Restrictions for Suicidal Youth Youth in the facilities on suicide precautions shall not be restricted in their access to programs and services more than safety and security needs dictate.
vii. Documentation of Suicide Precautions The following information shall be thoroughly and correctly documented, and provided to all staff at the facilities who need to know such information:
a. the times youth are placed on and removed from precautions;
b. the levels of precautions on which youth are maintained;
c. the housing location of youth on precautions;
d. the conditions of the precautions; and
e. the times and circumstances of all observations by staff monitoring the youth.
viii. Access to Emergency Equipment Direct care staff at the facilities shall have immediate access to appropriate equipment to intervene in the event of an attempted suicide by hanging.
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ix. Suicide and Suicide Attempt Review Appropriate staff shall review all completed suicides and serious suicide attempts at the facilities for policy and training implications.
C-1. SUICIDE PREVENTION – BCJJC
i. Implementation of Policy The State shall take all reasonable measures to assure that all aspects of its Suicide Prevention Policy are implemented.
ii. Mental Health Response to Suicidal Youth Youth at the facility who demonstrate suicidal ideation or attempt self-harm shall receive timely and appropriate mental health care by qualified mental health professionals. This care shall include helping youth develop skills to reduce their suicidal ideations or behaviors, and providing youth discharged from suicide precautions with adequate follow-up treatment.
iii. Supervision of Youth at Risk of Self-Harm The State shall sufficiently supervise youth in seclusion to maintain their safety.
iv. Housing for Youth at Risk of Self-Harm The State shall take all reasonable measures to assure that all housing for youth at heightened risk of self-harm, including holding rooms, seclusion rooms and housing for youth on suicide precautions, is free of identifiable hazards that would allow youth to hang themselves or commit other acts of self-harm.
v. Documentation of Suicide Precautions The following information shall be thoroughly and correctly documented, and provided to all staff at the facility who need to know such information:
a. the times youth are placed on and removed from precautions;
b. the levels of precautions on which youth are maintained;
c. the housing location of youth on precautions;
d. the conditions of the precautions; and
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e. the times and circumstances of all observations by staff monitoring the youth.
vi. Suicide and Suicide Attempt Review Appropriate staff shall review all completed suicides and serious suicide attempts at the facility for policy and training implications.
vii. Environmental Suicide Hazards The State shall remove, replace, or remediate known and identified environmental suicide hazards at the facility, such as the non-suicideresistant bed frames and the mezzanine stair railings in the housing units.
D. MENTAL HEALTH – CHELTENHAM AND HICKEY
i. Adequate Treatment The State shall provide adequate mental health and substance abuse care and treatment services (including timely emergency services) and an adequate number of qualified mental health professionals. Psychiatric care shall be appropriate to the adolescent population of the facilities and shall be integrated with other mental health services.
ii. Establishment of director of mental health The State shall designate a director of mental health. The director shall meet minimum standards, as specified by the State, to oversee the mental health care and rehabilitative treatment of youth at the facilities by performing the tasks required by this Agreement, including:
a. oversight of mental health care in the facilities, including monitoring the performance of psychologists, counselors and psychiatrists, and developing and implementing policies and training programs;
b. monitoring of whether staffing and resources are sufficient to provide adequate mental health care and rehabilitative treatment services to the facilities’ youth and to comply with this Agreement; and
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c. development and implementation of a quality assurance program for mental health care.
iii. Admissions Consultation and Referral If a youth presents at admission to a facility with mental health needs which cannot be met safely at the facility, the State shall transfer the youth promptly to appropriate settings that meet the youth’s needs. Qualified mental health professionals shall be readily available for timely consultations regarding admissions decisions.
iv. Mental Health Screening The State shall develop and implement policies, procedures and practices for all youth admitted to the facilities to be screened comprehensively by qualified mental health professionals in a timely manner utilizing reliable and valid measures. If, due to exceptional circumstances, no such professional is on-site to conduct the screening, it shall be conducted by another staff member who has received specific training in conducting such assessments and reviewed by a qualified mental health professional.
v. Mental Health Assessment Youth in the facilities whose mental health screens indicate the possible need for mental health services shall receive comprehensive, appropriate and up-to-date assessments by qualified mental health professionals.
vi. Treatment Plans Youth in the facilities in need of mental health and/or substance abuse treatment shall have an adequate treatment plan, including a behavior management plan, as appropriate, which shall be implemented in the facilities.
vii. Mental Health Involvement in Housing Decisions The State shall adequately consider mental health issues in providing safe housing for youth in the facilities.
viii. Informed Consent Consistent with State law, the State shall, prior to obtaining consent for the administration of psychotropic medications, provide youth and, as appropriate, their parents or guardians with information regarding the goals, risks, benefits and potential side effects of such medications offered for their treatment, as well as an
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explanation of what the consequences of not treating with the medication might be, and whether a recommendation is made in a dosage or manner not recognized by the United States Food and Drug Administration.
ix. Mental Health Medications The State shall take all reasonable measures to assure that psychotropic medications are prescribed, distributed, and monitored properly and safely. The State shall provide regular training to all health and mental health staff on current issues in psychopharmacological treatment, including information necessary to monitor for side effects and efficacy.
x. Mental Health and Developmental Disability Training for Direct Care Staff The State shall develop and implement strategies for providing direct care and other appropriate staff with training on mental health and developmental disabilities sufficient for staff to understand the behaviors and needs of youth residents and supervise them appropriately.
xi. Transition Planning The State shall take all reasonable measures to assure that staff create appropriate transition plans for youth leaving the facilities. Such plans shall appropriately consider each youth’s length of stay and subsequent placement. Plans shall include providing the youth and his or her parents or guardian with information regarding mental health resources available in the youth's home community; making referrals to such services when appropriate; providing appropriate orders for the continuation of prescribed medications; and providing assistance in making initial appointments with service providers.
D-1. MENTAL HEALTH – BCJJC
i. Adequate Treatment The State shall provide adequate mental health and substance abuse care and treatment services (including timely emergency services) and an adequate number of qualified mental health professionals. Psychiatric care shall be appropriate to the adolescent population of the facility and shall be integrated with other mental health services.
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ii. Mental Health Screening The State shall develop and implement policies, procedures and practices for all youth admitted to the facility to be screened comprehensively by qualified mental health professionals in a timely manner utilizing reliable and valid measures. If, due to exceptional circumstances, no such professional is on-site to conduct the screening, it shall be conducted by another staff member who has received specific training in conducting such assessments and reviewed by a qualified mental health professional.
iii. Mental Health Assessment Youth in the facility whose mental health screens indicate the possible need for mental health services shall receive comprehensive, appropriate and up-to-date assessments by qualified mental health professionals.
iv. Treatment Plans Youth in the facility in need of mental health and/or substance abuse treatment shall have an adequate treatment plan, including a behavior management plan, as appropriate, which shall be implemented in the facility.
v. Mental Health Record-keeping Consistent with State law, the State shall provide adequate mental health record-keeping and communications between and among the treatment teams, psychiatry staff, and the youths’ families.
vi. Informed Consent Consistent with State law, the State shall ensure that youths in the facility are provided with accurate information regarding the confidentiality of communications with facility clinicians.
E. MEDICAL CARE – CHELTENHAM AND HICKEY
i. Appropriate Care The State shall provide adequate, appropriate and timely medical and dental care to meet the individualized needs of youth, including treatment of acute and chronic medical conditions. The State shall provide sufficient numbers of qualified medical professionals to meet these needs.
ii. Medical Director A qualified, licensed physician shall supervise clinical practices and medical policy development, and shall participate in quality assurance and infection control programs at the facilities.
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iii. Health Assessments The State shall conduct adequate health assessments for youth upon entry or re-entry to the facilities.
iv. Medication Administration The State shall develop and implement standards for medication administration, and shall train all staff responsible for medication administration to prevent medication discontinuity and errors.
v. Medical and Mental Health Records Retrieval The State shall make all reasonable efforts to assure that the facilities obtain available pertinent youth records regarding medical and mental health care.
vi. Medical and Mental Health Record System The State shall develop and implement standards, procedures and practices to create an integrated medical and mental health record system, and shall maintain the system.
F. SPECIAL EDUCATION– CHELTENHAM AND HICKEY
i. Provision of Required Special Education The State shall provide all eligible youth confined at the facilities special education services as required by the IDEA, 20 U.S.C. §1400 et seq., and regulations promulgated thereunder, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and regulations promulgated thereunder.
ii. Supervision of Education The State shall designate a director of education within the facilities. The director shall meet minimum standards as specified by the State. The State shall provide the director with sufficient staff and resources to perform the tasks required by this Agreement, including:
a. overseeing the special education programming in the facilities, including development and implementation of policies and training programs;
b. monitoring whether special education staffing and resources are sufficient to provide adequate special education services
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to qualified youth at the facilities and to comply with this Agreement;
c. developing and implementing a quality assurance program for special education services; and
d. developing and implementing an adequate vocational education program for all eligible youth.
iii. Screening and Identification Qualified professionals shall provide prompt and adequate screening of facility youth for special education needs, including identifying youth who are receiving special education in their home school districts and those eligible to receive special education services who have not been so identified in the past.
iv. Parent, Guardian and Surrogate Involvement The State shall appropriately notify and involve parents, guardians or surrogate parents in evaluations, eligibility determinations, Individualized Education Programs (“IEPs”), placement and provision of special education services.
v. Individualized Education Programs The State shall develop and/or implement an adequate IEP, as defined in 34 C.F.R. § 300.320, for each youth who qualifies for an IEP. Consistent with the requirements of 34 C.F.R. § 300.323(c), within 30 days of a determination that a youth is eligible for special education and related services, the State shall conduct an IEP meeting to develop an IEP. As part of satisfying this requirement, DJS must conduct required re-evaluations of IEPs, adequately provide and document all required instructional services, conduct appropriate assessments and comply with requirements regarding student and teacher participation in the IEP process. Mental health staff shall be involved in development of IEPs of all youth with identified mental illness. Goals and objectives shall be stated in realistic and measurable terms.
vi. Vocational Education The State shall develop and implement adequate vocational education services for all eligible youth.
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vii. Staffing The director of education shall provide adequate education staffing.
viii. Section 504 Plans The State shall develop and implement appropriate Section 504 plans for all eligible youth.
F-1. SPECIAL EDUCATION – BCJJC
i. Provision of Required Special Education The State shall provide all eligible youth confined at the facility special education services as required by the IDEA, 20 U.S.C. §1400 et seq., and regulations promulgated thereunder.
ii. Screening and Identification Qualified professionals shall provide prompt and adequate screening of facility youth for special education needs, including identifying youth who are receiving special education in their home school districts and those eligible to receive special education services who have not been so identified in the past.
iii. Parent, Guardian and Surrogate Involvement The State shall appropriately notify and involve parents, guardians or surrogate parents in evaluations, eligibility determinations, Individualized Education Programs (“IEPs”), placement and provision of special education services.
iv. Individualized Education Programs The State shall develop and/or implement an adequate IEP, as defined in 34 C.F.R. § 300.320, for each youth who qualifies for an IEP. Consistent with the requirements of 34 C.F.R. § 300.323(c), within 30 days of a determination that a youth is eligible for special education and related services, the State shall conduct an IEP meeting to develop an IEP. As part of satisfying this requirement, the State must conduct required re-evaluations of IEPs, adequately provide and document all required instructional services, conduct appropriate assessments and comply with requirements regarding student and teacher participation in the IEP process. Mental health staff shall be involved in development of IEPs of all youth with identified mental illness. Goals and objectives shall be stated in realistic and measurable terms.
v. Staffing The State shall provide adequate special education staffing.
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G. FIRE SAFETY – CHELTENHAM AND HICKEY
Fire Safety Precautions The State shall develop and implement adequate fire safety precautions. The precautions shall include appropriate maintenance of fire suppression and detection equipment and maintenance of doors and door locks so that they may be opened in the event of fire.
IV. COMPLIANCE AND QUALITY ASSURANCE
A. Document Development and Revision The State shall revise and/or develop policies, procedures, protocols, training curricula, and practices as necessary to make them compliant with the provisions of this Agreement. The State shall revise and/or develop as necessary other written documents such as screening tools, logs, handbooks, manuals, and forms, to effectuate the provisions of this Agreement.
B. Document Review Written State policies, procedures, and protocols that address the provisions of this Agreement regarding the following topics shall be submitted to the Monitoring Team for review and approval within ninety (90) calendar days of the execution of this Agreement: use of force/crisis management; use of restraints and seclusion; mental health, medical and dental screening and assessment; treatment planning; and medication administration and monitoring. The State shall supply the DOJ with copies of all such policies, procedures, and protocols when it submits them to the Monitoring Team. The Monitoring Team shall approve and/or suggest revisions to these policies, procedures, and protocols within thirty (30) days of receipt, unless a longer period is agreed upon by the parties.
C. Quality Assurance Programs The State shall develop and implement quality assurance programs for protection from harm, suicide prevention, mental health care, medical care, special education services, and fire safety.
D. Corrective Action Plans DJS shall develop and implement policies and procedures as necessary to address problems that are uncovered during the course of its quality
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assurance activities. The State shall develop and implement corrective action plans to address these problems.
V. MONITORING AND ENFORCEMENT
A. Monitoring Team Selection The State in its discretion may undertake to provide services consistent with “best practices” recommended by leading experts in the field of juvenile justice. However, the parties contemplate active monitoring solely for compliance with constitutional and federal statutory standards.
i. Members Within 45 days after the effective date of this Agreement, the State and DOJ shall together select a Monitoring Team. For Cheltenham and Hickey, members of the Monitoring Team shall include experts in the fields of juvenile justice/youth confinement practices/protection from harm, mental health care, medical care, education, and fire safety. For BCJJC, members of the Monitoring Team shall include experts in the fields of juvenile justice/protection from harm, mental healthcare, and education. The Monitoring Team shall have full authority to assess, review and report independently on the State’s implementation of and compliance with the provisions of this Agreement.
a. The parties shall choose one Monitoring Team Member to be the Monitoring Team Leader, who shall be responsible for coordinating site visits to the facilities, arranging for appropriate informationsharing between Monitoring Team Members, and for preparing the reports to the parties as required in this Agreement.
b. If the parties are unable to agree on any Monitoring Team Member or on the appointment of the Monitoring Team Leader within 45 days after the effective date of this Agreement, each party shall, within 60 days after the effective date of this Agreement, submit two names of qualified candidates for the position, along with resumes or curricula vitae and cost
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proposals, to dispute resolution as provided in Section VII N. of this Agreement.
c. The parties agree to select the same Monitoring Team Members for BCJJC as for Hickey and Cheltenham, if those Members are available.
ii. Non-delegation of Responsibilities The Monitors shall be considered key personnel; their responsibilities may not be delegated. The Monitors may employ a staff sufficient to complete their duties efficiently, but compensation for such staff shall be paid by the Monitors and a budget for same must be included in the contract entered into with the State.
iii. Independence of Monitoring Team Neither party, nor any employee or agent of either party, shall have any supervisory authority over the Monitoring Team’s activities, reports, findings, or recommendations. Members of the Monitoring Team may be terminated if both parties agree and upon good cause shown. Good cause shall include any violation of State or federal law which reasonably calls into question the Monitoring Team member’s fitness to continue serving as a member of the Monitoring Team. In the event the parties do not agree upon the need for termination, the parties agree to submit the resolution of this matter to dispute resolution as described in Section VII N. of this Agreement.
iv. Costs The cost for the Monitoring Team shall be borne by the State, as set forth in the contracts executed with members of the Monitoring Team.
v. Replacement of Monitoring Team Members If a member of the Monitoring Team is terminated pursuant to section iii above, or becomes unavailable, the parties shall determine jointly whether a replacement is needed, and if so, jointly select a replacement within thirty (30) days of the member’s unavailability. In the event that the parties do not agree upon the need for or identity of a replacement, the parties agree to submit the decision to dispute resolution as provided in Section VII N. of this Agreement.
B. Monitoring Team’s Access The Monitoring Team shall have full and complete access to the facilities, records
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relevant and appropriate for the effective monitoring of this Agreement, staff, and residents. The Monitoring Team shall coordinate the timing of its on-site facility visits and requests for documents so as to minimize disruption to facility operations and State employee work functions. The Secretary shall direct all employees to cooperate fully with the Monitoring Team. All non-public information obtained by the Monitoring Team shall be maintained in a confidential manner. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the State may assert, including those recognized at common law and created by statute, rule or regulation against any other person or entity with respect to the disclosure of any information.
C. Monitoring Team’s Communications Members of the Monitoring Team may communicate with the parties as necessary to monitor the Agreement effectively.
D. Role of the Independent Juvenile Justice Monitor The State has created an Independent Juvenile Justice Monitor (IJJM) with duties to evaluate and report on conditions within the facilities. Beginning on the effective date of this Agreement, the IJJM shall provide to the DOJ and the Monitoring Team the data and final reports produced by the IJJM in the course of performing his/her statutory duties. The Monitoring Team may request from the IJJM such additional data as necessary to avoid duplication and unnecessary interference with the operation of the facilities. Nothing in this section shall be construed to limit the Monitoring Team in ascertaining and reporting facts relevant to the State’s compliance with the terms of this Agreement.
E. Limitations on Public Disclosures by Monitoring Team Members
i. Prohibition on Public Statements; Confidentiality Agreement Unless required by law, or as provided in this Agreement, neither the Monitoring Team members nor any of their staff shall make any public statements or issue findings with regard to any information provided to the Monitoring Team or the Monitoring Team’s staff pursuant to this Agreement. Each member of the Monitoring Team shall execute a confidentiality agreement limiting disclosure of information obtained, consistent with
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law, to protect the privacy of the children served in the facilities.
ii. Limits on Testimony Except when subject to compulsory process or for the purposes of testifying in litigation between the parties, no member of the Monitoring Team nor any member of their staff may testify in any public forum or legislative proceeding with regard to any matter or subject that he or she may have learned as a result of his or her participation on the Monitoring Team.
iii. Conflicts of Interest Unless such conflict is waived by both parties, members of the Monitoring Team shall not accept employment or provide consulting services that would present a conflict of interest with their responsibilities under this Agreement including being retained (on a paid or unpaid basis) by any current or future litigant or claimant or such litigant’s or claimant’s attorney, in connection with a claim or suit against the State or its departments, officers, agents or employees concerning matters relevant to this Agreement.
F. Monitoring Team’s Reports The Monitoring Team shall provide the parties with reports describing the extent to which the State has substantially complied with each substantive provision of the Agreement and the steps taken by DJS to implement the Agreement. Such reports shall be issued semiannually. The first report shall issue six months after the effective date of the original Agreement, unless the parties jointly agree otherwise. The reports shall be provided to the parties in draft form for comment at least four weeks prior to their issuance. Comments/responses of the State and the DOJ shall be included separately in the reports. These reports shall be written with due regard for the privacy interests of individual youth and staff and the interest of the State and DJS in protecting against disclosure of non-public information. Monitoring Team reports shall not include names or personally identifying information of youth. Where Monitoring Team members identify individual events or concerns about this Agreement that involve particular youth, they shall employ alternative means (other than the Monitoring Team reports) to inform the parties of the identities of the involved youth.
G. Monitoring Team’s Budget and Staff The Monitoring Team’s budget shall be limited as set forth in their contracts
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with the State. The Monitoring Team shall be responsible to compensate any and all staff deemed necessary to allow the Monitoring Team to carry out the responsibilities described in this Agreement without exceeding their contractual amounts.
VI. REPORTING REQUIREMENTS AND RIGHT OF ACCESS
A. DOJ Access The DOJ, upon reasonable notice to the State’s counsel, shall have access to the facilities, youth and staff records, and staff and residents of the facilities. The DOJ shall have the right to conduct confidential interviews with staff, residents, and former residents. The United States shall abide by the Confidentiality Agreement reached by the parties in January 2003. Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right the State may assert, including those recognized at common law and created by statute, rule or regulation against any other person or entity with respect to the disclosure of any information.
B. State Response to DOJ Questions Within a reasonable time following receipt of written questions from the DOJ concerning the State’s compliance with this Agreement, DJS shall provide the DOJ with written answers and any requested documents regarding the State’s compliance with the requirements of this Agreement. Such inquiries and document requests will be coordinated with the activities of the Monitoring Team.
C. State Documentation of Compliance The State shall maintain sufficient records to document its compliance with all of the requirements of this Agreement. The State shall also maintain (so long as this Agreement remains in effect) any and all records required by or developed under this Agreement.
D. Department of Social Services Investigative Files Because child abuse investigation records of the Departments of Social Services in Maryland are confidential under State law and not considered by DJS in conducting its own independent investigation and addressing or remedying allegations of child abuse by staff, neither the Monitoring Team nor the United States shall seek such records. No representative of the State (including the Independent Juvenile Justice Monitor) shall release such records to the United States or the Monitoring Team. The ultimate determination by the Department of Social
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Services that alleged child abuse is indicated, unsubstantiated or ruled out, if it is received by DJS, may be obtained from DJS by the United States and/or the Monitoring Team.
VII. IMPLEMENTATION AND TERMINATION
A. Information to Employees The State shall provide information and training so that all current and future employees at the facilities understand and implement the terms of this Agreement.
B. Implementation The State shall implement all measures reasonably necessary to achieve substantial compliance with this Agreement.
C. Integration This Agreement shall constitute the entire integrated Agreement of the parties. No prior or contemporaneous communications, oral or written, will be relevant for purposes of determining the meaning of any provisions herein.
D. Enforcement This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, and successors.
E. Rule 41 Conditional Dismissal Upon execution of this Amended Settlement Agreement, the DOJ shall file an amended complaint in the United States District Court for the District of Maryland, Northern Division, and file contemporaneously a Joint Motion for Conditional Dismissal of the amended complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). A copy of this Agreement shall be attached to the Joint Motion for Conditional Dismissal and that motion shall: (1) request that the court dismiss the amended complaint upon the passage of three (3) years from the date of the original complaint’s filing or the State’s earlier substantial compliance with the terms of this Agreement; (2) request that the court place the case on its inactive docket; and (3) retain jurisdiction over the case until three (3) years have passed since the original filing or an earlier final dismissal is entered. The parties expressly declare that this provision shall not be interpreted to provide for active judicial supervision.
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F. Notice to State and Opportunity to Cure If the DOJ believes that the State has failed to fulfill a significant obligation under this Agreement, the DOJ will, prior to seeking judicial action to enforce the terms of this Agreement, give written notice of the failure to the State. The State shall have sixty days from the date of such notice to cure the failure, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, and provide the DOJ with sufficient proof of its cure. At the end of the sixty day period, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, in the event that the DOJ determines that the failure has not been cured, the DOJ may seek judicial action without further notice. However, in case of an emergency posing an immediate threat to the health or safety of youths, the United States shall notify the State but may omit any period for cure described herein, before seeking judicial action. The DOJ commits to work in good faith with the State to avoid enforcement actions.
G. State’s Reservation of Defenses If the United States seeks judicial enforcement of this Agreement, the State reserves the right to raise as a defense exigent circumstances in the State, including, but not limited to: economic recession, necessary diversion of resources and personnel in the event of widespread threat to public health, or act of war.
H. United States’ Position on State’s Reservation of Defenses Nothing in this Agreement shall be construed as an acknowledgment or admission by the United States that any defense raised by the State relieves the State of its obligation under this Agreement.
I. Integration This Agreement is the completely integrated agreement between the parties. The Agreement resolves the United States’ current investigation of BCJJC, Cheltenham and Hickey pursuant to CRIPA and Section 14141. The United States shall not seek additional measures or requirements in enforcing this Agreement.
J. Non-waiver Failure by any party to enforce this entire agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions in this Agreement.
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K. Legal Standard To the extent that the State’s implementation of any provision of this Agreement requires the exercise of professional judgment, the standard articulated in Youngberg v. Romeo, 457 U.S. 307 (1982), shall be applied.
L. Technical Assistance The United States shall provide technical assistance to the State by assisting in identifying potential grants and other opportunities for low-cost or costfree training or by providing consultants to train senior staff in the areas of Adolescent Behaviors, De-Escalation Techniques, and Identification and Recognition of Mental Health Needs in Facility Youth, and Integration of Mental Health Services into Direct Care Service Delivery. This technical assistance will be provided in a “train the trainers” format. Should the DOJ engage consultants to tour the facilities, the DOJ shall provide the State with an opportunity to conduct exit interviews with the consultants and with copies of the consultants’ reports, if such reports are produced.
M. Agreement Coordinator The State shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement.
N. Dispute Resolution The parties recognize that there may be areas about which they can not easily agree during the course of implementation of this Agreement. In order to address this possibility, the parties agree to employ, when necessary, the services of a neutral party and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. The parties agree to first look to neutral mediators who may be available at no cost, such as ones selected with the assistance of the Federal Mediation and Conciliation Service or available with third party grant funding through the Maryland Mediation and Conflict Resolution Office. Should costs be incurred for a mediator, the parties agree to share equally such costs.
O. Termination
i. Three Year Time Frame This Amended Agreement shall terminate definitively and unconditionally no later than June 29, 2008.
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ii. Section-by-Section and Facility-by-Facility Substantial Compliance The Agreement may end on a section-bysection, and facility-by-facility basis earlier than three (3) years from the effective date if the State has substantially complied with the provisions of that section of the Agreement at a facility for at least eighteen (18) months.
a. Burden of Proving Substantial Compliance The burden shall be on the State to demonstrate to the appropriate member or members of the Monitoring Team that the State has complied substantially with the Agreement. A finding of substantial compliance by the Monitoring Team may not be unreasonably withheld.
b. Substantial Compliance Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance.
c. Standard for Substantial Compliance The parties agree that the standards against which substantial compliance will be monitored are those that are constitutionally required and required by Federal statute, as provided in Section V A. The State’s unilateral implementation of best practices will not modify the standard.
P. Defense of Agreement The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court shall be sought.
Q. Unforeseen Delay If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the State shall notify the DOJ in writing within a reasonable time after the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure.
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R. Non-Retaliation No person reporting conditions which may constitute a violation of the laws or Constitution of the United States or this Agreement shall be subjected to retaliation in any manner for so reporting. See 42 U.S.C. § 1997d.
S. Subheadings All subheadings in this Agreement are written for convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision.
T. Severability In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.

FOR THE STATE:
/s/ Martin O’Malley MARTIN O’MALLEY Governor State of Maryland

Date

/s/ Donald W. Devore DONALD W. DEVORE Secretary of Juvenile Services

Date

APPROVED FOR LEGAL SUFFICIENCY:

/s/ Robert T. Fontaine ROBERT T. FONTAINE Assistant Attorney General State of Maryland

Date

Date: May 18, 2007
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

UNITED STATES OF AMERICA,

)

950 Pennsylvania Avenue, N.W.

)

Washington, D.C. 20530

)

)

Plaintiff,

)

)

vs.

) Civil Action No.

)

1:05-cv-01772

)

THE STATE OF MARYLAND

)

200 Saint Paul Place

)

Baltimore, Maryland 21202;

)

County of Residence:

)

Baltimore City;

)

)

MARTIN O’MALLEY, Governor

) FIRST AMENDED COMPLAINT

of the State of Maryland

)

State House

)

Annapolis, Maryland 21401

)

County of Residence:

)

Anne Arundel County;

)

)

THE MARYLAND DEPARTMENT OF

)

JUVENILE SERVICES

)

120 West Fayette Street

)

Baltimore, MD 21201

)

County of Residence:

)

Baltimore City;

)

)

DONALD DEVORE, Secretary

)

120 West Fayette Street

)

Baltimore, MD 21201

)

County of Residence:

)

Baltimore City;

)

)

REGINALD GARNETT, Superintendent )

Cheltenham Youth Facility

)

11001 Frank Tippett Road

)

Cheltenham, Maryland 20623

)

County of Residence:

)

Prince George’s County

)

)

)

)

LEANDER PARKER, Administrator

)

Charles H. Hickey, Jr. School

)

2400 Cub Hill Road

)

Baltimore, Maryland 21234

)

County of Residence:

)

Baltimore County;

)

)

RODNEY PEGRAM, Director

)

Baltimore City Juvenile

)

Justice Center

)

300 N. Gay Street

)

Baltimore, Maryland 21202

)

County of Residence:

)

Baltimore City,

)

)

)

)

Defendants.

)

Plaintiff, the United States of America, by its undersigned attorneys, for its complaint alleges:
1. This action is brought by the Attorney General, on behalf of the United States, pursuant the pattern or practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, to enjoin the State of Maryland from depriving youth confined in the Cheltenham Youth Facility (“Cheltenham”) in Cheltenham, Maryland, the Charles H. Hickey, Jr. School (“Hickey”) in Baltimore County, Maryland, and the Baltimore City Juvenile Justice Center (the “Justice Center”), in Baltimore, Maryland, of rights, privileges or immunities secured or protected by the Constitution and laws of the United States.

3

JURISDICTION, STANDING AND VENUE 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141. 4. Venue in the District of Maryland is proper pursuant to 28 U.S.C. § 1391(b). All claims set forth in this complaint arose in this District.
DEFENDANTS 5. Defendant STATE OF MARYLAND ("State") is responsible for the administration of juvenile justice in the State, including the operation of certain secure juvenile facilities. This action concerns the administration of three secure juvenile facilities: Cheltenham, Hickey, and the Justice Center (collectively, the “Facilities”). 6. Defendant MARTIN O’MALLEY is the Governor of Maryland, and in this capacity heads the executive branch of Maryland’s government. The Governor of Maryland, as chief of the executive branch, has the duty to ensure that the departments that compose the executive branch of Maryland government guarantee the federal constitutional and statutory rights of all of the citizens of Maryland, including the youth confined in the Facilities. 7. Defendant MARYLAND DEPARTMENT OF JUVENILE SERVICES (“DJS”) is a department of the executive branch of Maryland
4

government and is the state agency responsible for the care and custody of youth confined at the Facilities by the Maryland juvenile courts.
8. Defendant DONALD DEVORE is the Secretary of the Maryland Department of Juvenile Services and, in this capacity, exercises administrative control of, and responsibility for the Facilities.
9. Defendant LEANDER PARKER is the Facility Administrator of the Charles H. Hickey, Jr. School and is responsible for the administration and day-to-day operations of Hickey.
10. Defendant REGINALD GARNETT is the Superintendent of Cheltenham Youth Facility and is responsible for the administration and day-to-day operations of Cheltenham.
11. Defendant RODNEY PEGRAM is the Director of the Baltimore City Juvenile Justice Center and is responsible for the administration and day-to-day operations of the Justice Center.
12. The individual Defendants named in paragraphs 6-11 above are officers of the Executive Branch of the State of Maryland and are sued in their official capacities.
13. Defendants are legally responsible, in whole or in part, for the operation of and conditions at the Facilities; for ensuring the safety and security of youth; for ensuring that youth are adequately protected from harm; for ensuring that youth receive appropriate treatment, rehabilitation, and education
5

commensurate with their needs and abilities; for ensuring that youth are provided due process of law; for ensuring that youth receive adequate medical and mental health care; for ensuring that youth are adequately protected from fire; and for ensuring that programs for youth are consistent with the Maryland Department of Juvenile Services’ mission to provide opportunities for the treatment and rehabilitation of youth.
14. All relevant acts or omissions described below have been undertaken by the State, a political subdivision of the State, or an official, employee, agent or person acting on behalf thereof.
FACTUAL ALLEGATIONS 15. Defendants are governmental authorities or agents thereof with responsibility for the administration of juvenile justice within the meaning of 42 U.S.C. § 14141. 16. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that the youth at the Facilities are adequately protected from harm and from undue risk of harm from: staff abuse, youth-on-youth violence, self-harm, and abusive juvenile confinement practices. 17. Defendants have engaged, and continue to engage, in a pattern or practice of subjecting youth at Cheltenham and Hickey to unreasonable isolation, inhumane conditions and failing to provide adequate due process.
6

18. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at the Facilities receive adequate mental health care and rehabilitative treatment.
19. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at Cheltenham and Hickey receive adequate medical and dental care.
20. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that eligible youth with disabilities at the Facilities receive adequate special education services.
21. Defendants receive federal financial assistance and, as such, are subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder.
22. The youth residing at the Facilities include youth with mental illness, mental retardation, and other disabilities who fall within the meaning of “children with disabilities” as defined in the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § 1401 (a)(1) (West, Westlaw through July 3, 2006), and "individual[s] with a disability" as defined in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(20).
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23. Defendants have engaged, and continue to engage, in a pattern or practice of failing to ensure that youth at Cheltenham and Hickey are adequately protected from the risk of fire.
VIOLATIONS ALLEGED 24. Through the acts, practices, and omissions alleged in paragraphs 16-23, Defendants have engaged, and continue to engage, in a pattern or practice of depriving youth confined at the Facilities of rights, privileges, or immunities secured by the Constitution of the United States, including the Eighth and Fourteenth Amendments, and in violation of 42 U.S.C. § 14141(a). 25. Through the acts, practices and omissions alleged in paragraphs 18 and 20-22, Defendants have engaged, and continue to engage in a pattern or practice of failing to comply with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1482 (West, Westlaw through July 3, 2006), and the regulations promulgated pursuant thereto, thereby depriving qualified youth of their rights under that Act and violating 42 U.S.C. § 14141(a). 26. Through the acts and omissions alleged in paragraphs 18 and 20-22, Defendants have engaged, and continue to engage, in a pattern or practice of failing to comply with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and the regulations promulgated pursuant thereto, thereby depriving
8

qualified youth of their rights under that Act and regulations and violating 42 U.S.C. § 14141(a).
27. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 16-23 that deprive youth confined at the Facilities of rights, privileges, or immunities secured or protected by the laws and Constitution of the United States.
PRAYER FOR RELIEF 28. The Attorney General is authorized under 42 U.S.C. § 14141 to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, contractors and all those acting in concert or participation with them from continuing the acts, practices and omissions set forth in paragraphs 16-23, above, and to require Defendants to take such action as will provide legal and constitutional conditions of care to youth confined at the Facilities and any other secure facility to which Defendants transfer youth confined at the Facilities during the pendency of this action. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
9

ROD J. ROSENSTEIN United States Attorney District of Maryland 36 S. Charles Street Fourth Floor Baltimore, MD 21201 (410) 209-4800

Respectfully submitted,
/s/ Wan J. Kim WAN J. KIM Assistant Attorney General Civil Rights Division
/s/ Shanetta Y. Cutlar SHANETTA Y. CUTLAR Chief Special Litigation Section

ALLEN LOUCKS Assistant United States Attorney United States Attorney’s Office 36 S. Charles Street Fourth Floor Baltimore, MD 21201 (410) 209-4800

/s/ Daniel H. Weiss DANIEL H. WEISS Deputy Chief Special Litigation Section Bar Number 08096 JOSHUA DELANEY STACEY GRIGSBY Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Daniel.Weiss@usdoj.gov Joshua.Delaney@usdoj.gov Stacey.Grigsby@usdoj.gov (202) 514-6253 (202) 514-0212(fax)

Date: May 22, 2007

10

 
 Case: 1:05-cv-1772 As of: 08/09/2013 06:50 PM EDT 1 of 5
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:05−cv−01772−JFM

CLOSED

United States Of America v. The State of Maryland et al Assigned to: Judge J. Frederick Motz Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 06/30/2005 Date Terminated: 08/19/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States Of America

represented by Daniel Herman Weiss 11747 Owens Glen Way North Potomac, MD 20878 12026166594 Email: daniel.weiss@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allen F Loucks Office of the United States Attorney 36 S Charles St Fourth Fl Baltimore, MD 21201 14102094800 Fax: 14109620693 Email: allen.loucks@usdoj.gov ATTORNEY TO BE NOTICED

Bradley J Schlozman United States Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 12023052941 Fax: 12025140212 ATTORNEY TO BE NOTICED

Joshua Chaim Delaney United States Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Washington, DC 20530 12026162446 Fax: 12025140212 Email: joshua.delaney@usdoj.gov ATTORNEY TO BE NOTICED

Shanetta Y Cutlar United States Department of Justice Special Litigation Section 950 Pennsylvania Ave NW Washington, DC 20530 12023052941 Fax: 12025140212 ATTORNEY TO BE NOTICED

Tarra DeShields Minnis Office of the United States Attorney 36 S Charles St Fourth Fl Baltimore, MD 21201 14102094800 Fax: 14109629947

Case: 1:05-cv-1772 As of: 08/09/2013 06:50 PM EDT 2 of 5
Email: Tarra.DeShields@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant The State of Maryland
Defendant Robert L. Ehrlich, Jr. Governor of the State of Maryland TERMINATED: 05/23/2007 Defendant The Maryland Department of Juvenile Services Defendant Kenneth Montague Secretary TERMINATED: 05/23/2007 Defendant Reginald Garnett Superintendent

represented by Karl Aram Pothier State of Maryland Office of the Attorney General Department of Juvenile Services 120 West Fayette Street Baltimore, MD 21201 14102303135 Fax: 14102303143 Email: pothierk@djs.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Ann Nolan Howard County Office of Law 3430 Courthouse Drive Ellicott City, MD 21043 4103132101 Fax: 4103133292 Email: manolan@howardcountymd.gov TERMINATED: 07/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert T Fontaine Office of the Attorney General The Maryland State Lottery Agency 1800 Washington Blvd Ste 330 Baltimore, MD 21230 14102308783 Fax: 14102308787 Email: rfontaine@msla.state.md.us TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karl Aram Pothier (See above for address)

Case: 1:05-cv-1772 As of: 08/09/2013 06:50 PM EDT 3 of 5

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tom Bowers Administrator TERMINATED: 05/23/2007

represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Governor Martin O'Malley

represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Secretary Donald Devore

represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Administrator Leander Parker

represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Director Rodney Pegram

represented by Karl Aram Pothier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/30/2005
06/30/2005
07/19/2005 05/22/2007 05/22/2007 05/22/2007

# Docket Text
1 COMPLAINT against Robert L. Ehrlich, Jr, The Maryland Department of Juvenile Services, Kenneth Montague, Reginald Garnett, Tom Bowers, The State of Maryland , filed by United States Of America. (Attachments: # 1 Civil Cover Sheet)(ljs, Deputy Clerk) (Entered: 06/30/2005)
2 Joint MOTION for Conditional Dismissal by Robert L. Ehrlich, Jr, The Maryland Department of Juvenile Services, Kenneth Montague, Reginald Garnett, Tom Bowers, United States Of America, The State of Maryland. (Attachments: # 1 Exhibit A# 2 Text of Proposed Order)(ljs, Deputy Clerk) (Entered: 06/30/2005)
3 ORDER OF CONDITIONAL DISMISSAL granting 2 Joint Motion of Condidtional Dismissal. Signed by Judge J. Frederick Motz on 7/19/05. (slf, Deputy Clerk) (Entered: 07/19/2005)
4 NOTICE of Appearance by Allen F Loucks on behalf of United States Of America (Loucks, Allen) (Entered: 05/22/2007)
5 Consent MOTION to Reopen Case by United States Of America. Responses due by 6/8/2007 (Attachments: # 1 Text of Proposed Order)(Loucks, Allen) (Entered: 05/22/2007)
6 Consent MOTION to Amend/Correct 1 Complaint, by United States Of America. Responses due by 6/8/2007 (Attachments: # 1 Text of Proposed Order # 2 Redline First Amended Complaint# 3 First Amended Complaint)(Loucks, Allen) (Entered: 05/22/2007)

Case: 1:05-cv-1772 As of: 08/09/2013 06:50 PM EDT 4 of 5

05/22/2007

7 Joint MOTION to Amend/Correct 3 Order on Motion to Dismiss by United States Of America. Responses due by 6/8/2007 (Attachments: # 1 Exhibit Amended Settlement Agreement# 2 Text of Proposed Order)(Loucks, Allen) (Entered: 05/22/2007)

05/23/2007

8 ORDER granting 5 Motion of USA to Reopen Case. Signed by Judge J. Frederick Motz on 5/23/07. (slf, Deputy Clerk) (Entered: 05/23/2007)

05/23/2007

9 ORDER granting 6 Motion of plaintiff to Amend/Correct Complaint. Signed by Judge J. Frederick Motz on 5/23/07. (slf, Deputy Clerk) (Entered: 05/23/2007)

05/23/2007

10 AMENDED COMPLAINT against The State of Maryland, Martin O'Malley, The Maryland Department of Juvenile Services, Donald Devore, Reginald Garnett, Leander Parker, Rodney Pegram, filed by United States Of America. (Attachments: # 1 hi light copy of amended complaint)(slf, Deputy Clerk) (Entered: 05/23/2007)

05/24/2007

11 ORDER granting 7 Motion of plaintiff to Amend/Correct Order of Conditional Dismissal. Signed by Judge J. Frederick Motz on 5/24/07. (slf, Deputy Clerk) (Entered: 05/24/2007)

06/24/2008

12 Consent MOTION to Reopen Case by United States Of America Responses due by 7/11/2008 (Attachments: # 1 Text of Proposed Order)(Loucks, Allen) (Entered: 06/24/2008)

06/24/2008

13 Joint MOTION to Amend/Correct by United States Of America Responses due by 7/11/2008 (Attachments: # 1 Exhibit 1 − Second Amended Settlement Agreement, # 2 Text of Proposed Order)(Loucks, Allen) (Entered: 06/24/2008)

06/26/2008

14 ORDER granting 12 Motion of plaintiff to Reopen Case for the purpose of enabling the parties to file a Joint Motion to Amend this Court's May 24, 2007 Order. Signed by Judge J. Frederick Motz on 6/26/08. (slf, Deputy Clerk) (Entered: 06/26/2008)

06/26/2008

15 SECOND MODIFIED ORDER OF CONDITIONAL DISMISSAL granting 13 Motion of plaintiff to Amend/Correct. Ordered that this case shall be placed on the Court's inactive docket; this case shall be dismissed on June 29, 2009 or earlier if the State reaches substantial compliance with the terms of the Second Amended Settlement Agreement; this Court will retain jurisdiction over the case until either June 29, 2009 or such earlier time as the State achieves substantial compliance with the terms of the Second Amended Settlement Agreement; and the superintendents of Hickey and CYF shall immediately be dismissed as parties. Signed by Judge J. Frederick Motz on 6/26/08. (slf, Deputy Clerk) (Entered: 06/26/2008)

07/01/2008

16 NOTICE of Appearance by Karl Aram Pothier on behalf of all defendants (Pothier, Karl) (Entered: 07/01/2008)

07/01/2008

17 NOTICE by The Maryland Department of Juvenile Services, Reginald Garnett, Martin O'Malley, Donald Devore, Leander Parker, Rodney Pegram, The State of Maryland of the Withdrawal of Appearance, pursuant to Local Rule 101.2., of Robert T. Fontaine and Margaret Ann Nolan (Pothier, Karl) (Entered: 07/01/2008)

06/25/2009

18 Joint MOTION to Alter/Amend Judgment by United States Of America Responses due by 7/13/2009 (Attachments: # 1 Exhibit Third Amended Settlement Agreement, # 2 Text of Proposed Order Third Modified Order of Conditional Dismissal)(Delaney, Joshua) (Entered: 06/25/2009)

06/30/2009

19 THIRD MODIFIED ORDER OF CONDITIONAL DISMISSAL PLACING case on this court's inactive docket; DISMISSING on 6/29/11 or earlier if the State achieves substantial compliance with the terms of the Third Amended Settlement Agreement, and RETAINING jurisdiction until either 6/29/11 or earlier time as the State achieves substantial compliance with the terms of the Third Amended Settlement Agreement (terminating 18 Motion to Alter/Amend Judgment). Signed by Judge J. Frederick Motz on 6/30/09. (dass, Deputy Clerk) (Entered: 07/01/2009)

08/17/2010

20 Joint MOTION to Dismiss by United States Of America Responses due by 9/3/2010 (Attachments: # 1 Text of Proposed Order Proposed Order of Final Dismissal)(Delaney, Joshua) (Entered: 08/17/2010)

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08/19/2010

21 ORDER OF FINAL DISMISSAL. Signed by Judge J. Frederick Motz on 8/19/10. (mcb, Deputy Clerk) (Entered: 08/19/2010)