UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

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RODNEY FUSSELL Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699
and
GARY ROBERTS London Correctional Institution P.O. Box 69 London, Ohio 43140
and
JAMES LOVE Lebanon Correctional Institution P.O. BOX56 Lebanon, Ohio 45036
Plaintiffs,
REGINALD WILKINSON and
KAY NORTHRUP and
BRUCE MARTIN
Individually and in Their Official Capacities as Officials Ohio Department of Rehabilitation
And Correction 1050 Freeway Drive North Columbus, Ohio 43229
and
PEDRO OBREGON Individually and in His Official Capacity as Institution Chief Medical :

Case No CLASS ACTION COMPLAINT

Officer, Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699
and
MONA PARKS Individually and in Her Official Capacity as Health Care Administrator, Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699
and
VICKI WARE lndividually and in Her Official Capacity as Health Care Administrator, London Correctional Institution P.O. Box 56 London, Ohio 43140
and
JAMES MCWEENEY Individually and in His Official Capacity as Institution Chief Medical : Officer, London Correctional Institution : and Lebanon Correctional Institution : P.O. Box 56 Lebanon, Ohio 45036
and
CINDY LAWSON Individually and in Her Official Capacity as Health Care Administrator, Lebanon Correctional Institution P.O. Box 56 Lebanon, Ohio 45036
Defendants

1. PRELIMINARY STATEMENT 1. This is a civil rights class action for injunctive relief and damages for deprivations of plaintiffs' right to constitutionally required medical care. The plaintiffs are state prisoners confined at institutions under the jurisdiction of the Ohio Department of Rehabilitation and Correction ("ODRC"). Plaintiffs are suffering or have suffered from a variety of serious medical conditions that Defendants have failed to adequately treat due to system-wide deliberate indifference to the serious medical needs of Ohio prisoners. Plaintiffs bring claims under both federal and state law. They seek a preliminary and permanent injunction prohibiting continued unconstitutional practices and conditions of confinement concerning the lack of adequate medical care. The named plaintiffs also seek damages.
11. JURISDICTION 2. Jurisdiction over claims brought under the Civil Rights Act of 1871 is conferred on this Court by 28 U.S.C. $51331, 1343 (3) and (4). 3. Supplemental jurisdiction over plaintiffs' state law claims may be exercised by this Court pursuant to 28 U.S.C. $1367.
111. PARTIES A. Plaintiffs
4. Plaintiffs, RODNEY FUSSELL, GARY ROBERTS, and JAMES LOVE are citizens of the United States who are confined in Ohio state prisons. Mr. Fussell is incarcerated at the Southern Ohio Correctional Facility in Lucasville, Ohio. Mr. Roberts is incarcerated at the London Correctional Facility in London, Ohio. Mr. Love is incarcerated at Lebanon Correctional Institution in Lebanon, Ohio.

B. Defendants 5. Defendant WILKINSON is the Director of the Ohio Department of Rehabilitation
and Correction ("ODRC"), and is an agent of the State of Ohio. He is sued both in his official capacity and in his individual capacity.
6. Defendant NORTHRUP is employed by ODRC as the Deputy Director, Office of Correctional Health Care, and is an agent of the State of Ohio. She is responsible for managing and supervising the administrative, fiscal and operational concerns of the Office of Correctional Health Care. She is sued both in her official and individual capacity
7. Defendant MARTIN is employed by the Ohio Department of Rehabilitation and Correction as the Medical Director of the Bureau of Medical Services, and is an agent of the State of Ohio. Defendant Martin is responsible for the overall supervision of the clinical services rendered at all institutional medical facilities. He is sued in both his individual and official capacity.
8. Defendant OBREGON is employed by the Ohio Department of Rehabilitation and Correction as the Institution Chief Medical Officer of Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, and is an agent of the State of Ohio. Defendant Obregon is responsible for the day-to-day medical care of inmates at the institution level. He is sued in both his individual and official capacity.
9. Defendant PARKS is employed by the Ohio Department of Rehabilitation and Correction as the Health Care Administrator of Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, and is an agent of the State of Ohio. Defendant Parks is responsible for the administration of health care services within Southern Ohio Correctional Facility. She is sued in both her individual and official capacity.
10. Defendant WARE is employed by the Ohio Department of Rehabilitation and Correction as the Health Care Administrator of London Correctional Institution (LOCI)in
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London, Ohio, and is an agent of the State of Ohio. Defendant Ware is responsible for the
administration of health care services within London Correctional Institution. She is sued in
both her individual and official capacity. 11. Defendant MCWEENEY is employed by the Ohio Department of Rehabilitation and
Correction as the Institution Chief Medical Officer of Lebanon Correctional Institution (LeCI) in
Lebanon, Ohio, and London Correctional Institution (LOCI)in London, Ohio and is an agent of
the State of Ohio. Defendant McWeeney is responsible for the day to day medical care of inmates at the institution level. He is sued in both his individual and official capacity.
IV. CLASS ACTION ALLEGATIONS
12. This action is brought, and may be properly maintained, as a class action under
the provisions of Rules 23(a) and 23 (b)(2) of the Federal Rules of Civil Procedure. Plaintiffs
Fussell, Roberts and Love bring this class action on behalf of themselves and all others similarly
situated. The members of the class are as follows:
All inmates, who have been, will be or are incarcerated in prisons operated by or under the jurisdiction of the Ohio Department of Rehabilitation and Correction who, while so incarcerated, have been denied constitutionally required medical care.
13. Additionally, Plaintiffs Roberts and Love bring this action on behalf of
themselves and a subclass of similarly situated prisoners. The members of the subclass
are defined as follows:
All inmates, who were imprisoned before July 1, 1996, or who were imprisoned
on or after July 1, 1996 for offenses committed before July 1, 1996, ,who were
required to pay a $3.00 medical co-pay for medical services rendered while incarcerated. 14. The class and subclass are so numerous that joinder of all members is impracticable. While the exact number of classlsubclass members are unknown at this time, plaintiff believes
that the class and subclass consists of over 40,000 persons.
15. The claims of the named individual and representative plaintiffs are typical of the 5

claims of the class and subclass. Plaintiffs and all classlsubclass members sustained and continue to suffer injury arising from defendants' wrongful conduct as alleged herein.
17. The named individuals and representative plaintiffs will fairly and adequately protect the interests of the members of the classlsubclass. Proposed class counsel is experienced in the prosecution of class actions, including cases arising from the deprivation of civil rights in custodial settings and as well as cases involving complex litigation.
18. Defendants have acted, or refused to act, on grounds generally applicable to the class/subclass, thereby making final injunctive and corresponding declaratory relief appropriate with respect to the class.
19. A class action is superior to other available methods for the fair and efficient adjudication of this litigation since individual joinder of all members of the class/subclass is impracticable. Even if any group of classlsubclass members themselves could afford individual litigation, it would be unduly burdensome to the courts in which the individual litigation would proceed. Individual litigation magnifies the delay and expense to all parties and the court systems of resolving controversies surrounding defendants' acts. By contrast, the class action device presents far fewer management difficulties and provides the benefits of unitary adjudication, economies of scale, and comprehensive supervision by a single court.
V. FACTS CONCERNING SYSTEMIC FAILURES IN ODRC'S HEALTH CARE SYSTEM
20. There are 33 prisons under the jurisdiction of ODRC, including two institutions that are privately operated. Approximately 44,700 men and women are incarcerated in ODRC's prison system.
21. Most of the medical care offered in ODRC prisons is provided by doctors and medical personnel under contract with ODRC. Such contracts are awarded to medical care providers who submit the lowest approved bid.
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22. The Institution Chief Medical Officer is the physician responsible for the day-to-day medical care of inmates at the institutional level. The Institution Health Care Administrator is responsible for the administration of health care services at the institutional level. The Health Care Administrator, a nurse, is responsible for planning and coordinating health care services delivered at the institutional level.
19. Medical protocol is an official guidance issued by the ODRC Medical Director to direct a medical procedure or course of action.
20. Formularies are lists of drugs approved for use by the ODRC Medical Director in treating certain illnesses and conditions. Drugs that do not appear on the formularies may not be prescribed unless approval is obtained from the ODRC Medical Director.
21. The treatment decisions of Institution Chief Medical Officers are limited by medical protocols and formularies established by the ODRC Medical Director.
22. Under ODRC rules, inmates do not have the option to receive a second opinion in
medical matters. With the exception of specialty and surgical referrals to doctors employed by the Ohio State University Medical Center, inmates are not allowed to be seen by private physicians or "outside" doctors.
23. Inmates are not allowed to purchase prescriptions from outside sources. 24. Inmates are totally dependent on the defendants for the delivery of all of their medical care. 25. Inmates who suffer from certain chronic illnesses and conditions -hypertension, cardiovascular, seizure disorders, chronic obstructive pulmonary disease, diabetes, tuberculosis, HIV Infection/Disease, and chronic liver disease - are supposed to be followed and treated medically in chronic care clinics that address their particular health problems.

26. Prisoners who have medical needs that cannot be met by Institution Medical Chief Officers are, pursuant to the protocol, supposed to be referred to specialists at the Ohio State University Medical Center.
27. To the extent offered, dental care in ODRC prisons is provided by dentists and dental hygienists under contract with ODRC. Such contracts are awarded to dental care providers who submit the lowest approved bid.
29. Dental protocol is an official guidance issued for the entire prison system to direct a dental procedure or course of action.
30. The treatment decisions of dentists providing services at the institutional level are limited by a system wide dental protocol.
31. Inmates with complaints about the quality of medicalldental care must use the grievance system codified in Ohio Administrative Code s5120-9-3 1. The prison officials responsible for reviewing and responding to medicalldental grievances are not doctors/dentists and are therefore unqualified to determine whether appropriate care is being provided to individual prisoners.
32. Regardless of their incarceration dates, ODRC routinely charges inmates a $3.00 copayment fee to receive medical and/or dental care.
33. Health Care Administrators are the health care authorities responsible for the administration of health care within the institution. Health Care Administrators are registered nurses who assess, direct, plan, coordinate, supervise, and evaluate all health care services delivered at the institutional level.
34. Although they are not licensed physicians, health care administrators frequently overrule physicians' orders for referrals to specialists and impose lengthy delays when scheduling of appointments for follow-up care.

35. The overall quality of medical and dental care provided to Ohio inmates is grossly substandard and frequently falls below constitutional standards. Systemic problems include, but are not limited to:
a. Medical staffing shortages. Due to staffing problems, some prisons have gone several months without chief medical officers thus compromising the care provided to inmates. In addition. contract doctors and other staff work too few hours to ensure that prisoners are seen in a timely manner. These staffing problems seriously endanger the lives and well-being of prisoners in need of care.
b. Dental staffing shortages. Due to staffing problems, prisoners wait unreasonably long periods of time - in some cases more than two years - t o see a dentist or hygienist for routine care. These long delays cause prisoners to suffer periodontal disease and other problems that seriously impair their health and well-being.
c. Unreasonable delays in health services. Prisoners have suffered unreasonable delays in accessing routine screening examinations and in accessing specialty, and emergency heath care.
d. Unreasonable delays in referring prisoners for consultations. Prisoners in need of specialty consultations at Ohio State University Medical Center must be referred by the institution chief medical officer. These consultations are frequently delayed - often times for several months - due to a variety of problems including, but not limited to, long delays in obtaining approval for the consultation from ODRC Central Office, problems arranging transportation for the inmate, and last-minute cancellations by the specialists. These delays seriously endanger the lives and well-being of prisoners in need of specialty care.
e. Unreasonable delays in ordering diagnostic tests and obtaining results. Prisoners routinely encounter lengthy delays in obtaining diagnostic tests for serious illnesses like cancer and hepatitis C. There are also corresponding delays in obtaining the results from diagnostic tests. Overall, these problems seriously endanger the lives and well-being of prisoners.
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f. Requiring Institution Chief Medical Officers to adhere to less eficacious treatment protocols and formularies to limit costs. Defendants seriously endanger the lives and well-being of prisoners by requiring Institution Chief Medical Officers to provide less efficacious treatment and medicine as a way to contain costs. As a result, institution doctors are making treatment decisions based not on the best interests of the patient but on ODRC Central Office cost considerations.
g. Failure to provide critically ill prisoners with sufficient emergency care. Defendants fail to provide sufficient emergency care and critically ill prisoners have died after waiting unreasonably long times for ambulances and other emergency services.
h. Refusing to adopt auality control measures necessary to ensure competent medical and dental care. Defendants have seriously endangered the lives and well-being of prisoners by refusing to adopt appropriate quality control measures to ensure adequate patient care. For example, Defendants rejected the recommendation of ODRC consultant Vincent Nathan to have medical grievances reviewed by a panel of outside doctors. In addition, Defendants have failed to ensure that doctors providing services meet all licensing requirements. As a result, patient care has at times been provided by doctors with licensing problems and criminal histories. Defendants have also failed to ensure that prison health care employees do not provide services outside the scope of their expertise.
i. Ado~tinaseverely restrictive protocols for treatment of hepatitis C deny needed treatment to inmates The ODRC hepatitis C protocol denies interferon-ribavarin treatment to hepatitis C-positive inmates unless they suffer from advanced liver disease. This protocol is inconsistent with generally accepted community medical standards, which encourage early intervention and treatment with interferon-ribavarin therapy. The effect of the ODRC hepatitis C protocol is to deny treatment to most of the hepatitis C-positive inmates.

j. Inadequate Dental Care. The defendants do not provide annual dental cleanings, a position that is inconsistent with accepted professional standards. Lengthy delays in all dental care cause inmates to suffer unnecessarily from gum disease, infection and other related health problems.
k. The administration of the copavment requirement deters inmates from securing necessary medical and dental care. Although OAC 5120-5-13(A) states that "[nlo inmate shall be denied needed medical treatment because of a lack of ability to pay", inmates are routinely denied needed medical and dental care despite the fact that they cannot afford the $3.00 copayment fee.
36. Defendants have known for several years of the existence of these systemic medical care problems, and the fact that these problems put prisoners at substantial risk of death or serious physical harm. Defendants, however, have refused to take appropriate action to address these problems.
38. At all times relevant to this action, defendants have acted with deliberate indifference to the known and recognized serious medical need of the named plaintiffs and the members of the plaintiff class. Defendants have permitted the deprivations to continue, participated in said deprivations, or knowingly acquiesced in said deprivations of rights.
39. As a result of defendants' actions and inactions described above, members of the plaintiff class have suffered and continue to suffer deprivations of basic constitutional rights.
40. Members of the plaintiff class have suffered and are suffering irreparable harm for which they have no adequate remedy at law.
41. Members of the plaintiff class have suffered serious and substantial physical and emotional injury, pain and suffering, and other injuries and damages.

VI. FACTS RELATING TO INDIVIUDAL PLAINTIFFS A. Rodnev Fussell
42. Rodney Fussell is a forty-four year-old inmate who is incarcerated at Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio.
43. Mr. Fussell suffers from hepatitis C, a potentially life threatening disease which if untreated can lead to cirrhosis, liver cancer and death.
44. Hepatitis C is treated with interferon-ribavarin combination therapy. The medicine has a 40 to 50 % cure rate. The chance of a cure depends on several variables including how early in the progression of the disease treatment is begun. In general, the earlier interferonribavarin treatment begins, the better the likelihood of obtaining a cure. Conversely, the later treatment begins, the less likely it is that treatment when eventually provided will be successful.
45. Before interferon treatment can begin, the patient must first obtain a liver biopsy. Through a liver biopsy, a physician can stage and grade the liver. "Stage" refers to the amount of scarring or fibrosis that is present in the liver. There are four stages, 1 through 4, with stage 1 representing minimal scarring to stage 4 representing cirrhosis. "Grade" refers to the amount of necrosis or cell death of the liver. There are four grades, 1 through 4, with grade 1 representing minimal necrosis with grade 4 representing the most severe. A liver biopsy is necessary to determine whether to treat the disease with interferon-ribavarin.
46. Although Mr. Fussell's liver enzymes had been elevated since 1997, he was not tested and diagnosed with Hepatitis C until September, 2002.
47. After learning of his diagnosis, Mr. Fussell made two requests in October, 2002 to be referred to the Ohio State University gastroenterology clinic for a consultation. His request for a consultation, however, was rejected.
48. Mr. Fussell has not received a biopsy and as a result is unable to begin treatment for hepatitis C .
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49. Defendants OBregon, Parks, Wilkinson, Northrup, and Martin have acted with deliberate indifference to Mr. Fussell's serious medical needs. B. Garv Roberts
50. Gary Roberts is a fifty-seven year-old inmate who is incarcerated at London Correctional Institution (LOCI)in London, Ohio. Like plaintiff Fussell, Mr. Roberts also suffers from hepatitis C.
51. Although Mr. Roberts has had elevated liver enzyme levels since 1995, he was not tested for and diagnosed with Hepatitis C until 2000.
52. On November 12,2002, an OSU specialist recommended that Mr. Roberts be given a liver biopsy. To date, Mr. Roberts has not been given either a liver biopsy or interferon treatment.
53. Defendants McWeeney, Ware, Wilkinson, Northrup, and Martin have acted with deliberate indifference to Mr. Roberts' serious medical needs. C. James Love
54. James Love is a fifty-two year-old inmate who is incarcerated at Lebanon Correctional Institution (LeCI) in Lebanon, Ohio.
55. Mr. Love suffers from periodontal disease, a serious medical condition. 56. Due to inadequate staffing at LCI, Mr. Love was forced to wait twenty-seven (27) months to have his teeth cleaned. 57. After filing an Informal Complaint in July of 2002, Mr. Love was told that it takes "several months to be called for treatment" after requesting it. 58. Because of this delay and inadequate treatment, Mr. Love's front four bottom teeth are extremely loose and it is probable that he will lose them due to the inadequate dental care he has received. Loose teeth increase the risk of infection and increase general health risks to persons with heart conditions such as Mr. Love.
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59. Although Mr. Love finally had his teeth cleaned on June 16,2003, he had to have a second cleaning on August 11,2003 because so much tartar had accumulated on his teeth. Mr. Love is still waiting to have cavities filled that were identified at the June 2003 cleaning.
60. Because of the more than two-year delay in providing dental care to Mr. Love, he faces ongoing dental and health problems because of his four loose teeth, untreated periodontal disease and unfilled cavities.
61. Defendants McWeeney, Lawson, Wilkinson, Northrup, and Martin have acted with deliberate indifference to Mr. Love's serious medical needs.
D. Exhaustion of Administrative Remedies 62. The named plaintiffs have exhausted their administrative remedies. 63. Proof of exhaustion for Plaintiff Fussell is attached hereto as Exhibit A. 64. Proof of exhaustion for Plaintiff Roberts is attached hereto as Exhibit B. 65. Proof of exhaustion for Plaintiff Love is attached hereto as Exhibit C. 66. As a result of the deliberate indifference of the defendants, the individual plaintiffs
have suffered pain and emotional distress and a marked deterioration in their overall health.
- VII. FIRST CLAIM 42 U.S..C. 3 1983
67. Defendants have, under color of state law, deprived plaintiffs of rights, privileges and immunities secured by the Eighth and Fourteenth Amendments to the U.S. Constitution including but not limited to the right to adequate medical care and the right to be free of cruel and unusual punishment.
VIII. SECOND CLAIM - VIOLATION OF STATE STATUTORY LAW

68. Defendants have illegally imposed a $3.00 medical co-pay on members of the plaintiff class who were either imprisoned before July 1, 1996, or who were imprisoned on or after July 1, 1996 for offenses committed prior to July 1, 1996.
69. O.R.C. 5120.021 states that the pre-July 1, 1996 version of Chapter 5120 applies to persons who were imprisoned before July 1, 1996 and to persons who were imprisoned on or after July 1, 1996 for offenses committed prior to July 1, 1996.
70. Plaintiff Roberts has been incarcerated since May 9, 1995. He has routinely been charged the $3.00 copay in order to receive medical and dental care since July 1, 1996.
71. Plaintiff Love has been incarcerated since June 7, 1996. He has routinely been charged the $3.00 copay in order to receive medical and dental care since July 1, 1996.
72. The collection of the $3.00 copayment fee from inmates Robert and Love and from all similarly situated inmates violates O.R.C. 5 120.021.
IX. PRAYER FOR RELIEF Wherefore. plaintiffs request that this court A. Certify this case as a class action; B. Award to the named plaintiffs only compensatory and punitive damages in an amount to be shown at trial; C. Reimburse medical copays to plaintiffs Roberts and Love and to members of the subclass;
D. Award members of the plaintiff class reasonable attorneys fees and expenses; E. Order such further relief as this Court may deem just and proper.
Respectfully Submitted,

l5-4
Alohonse A. Gerhardstein. #0032053 ~ r j aAl ttorney for Plaintiffs 1409 ~ n ~ u i rBeurilding 617 Vine Street Cincinnati, OH 45202 (513) 621-9100 agerhardstein@laufgerhard.com
David A. Singleton Carol Camp Attorney for Plaintiffs Prison Reform Advocacy Center 1301 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513) 421-1108 dsingleton@,prisonrefom.com ccamp@,prisonreform.com
VERIFICATION
I verify that these facts are true to the best of my knowledge y d belief.
Alphonse A: Gerhardstein

 
 Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Rodney Fussell, et al.,
Plaintiffs, vs. Reginald Wilkinson, et al.,
Defendants,

) ) Case No. 1:03-CV-704 ) ) ) ) ) ) ) )

OPINION and ORDER APPROVING SETTLEMENT and DENYING OBJECTIONS
This matter came on for hearing on the proposed settlement of this class action on November 16, 2005. The proposed settlement agreement was executed by counsel for the Plaintiff Class, the Ohio Justice & Policy Center, Defendants, and the Ohio Department of Rehabilitation and Correction on November 15 and 26, 2005. On October 7, 2005, the Court preliminarily approved the proposed settlement and set November 16, 2005, for a hearing as to the fairness and adequacy of the proposed settlement. Notice of the hearing on the parties’ joint motion for approval of the settlement agreement was given in the manner specified by the Court in the October 7 order.
A hearing was conducted on November 16, 2005, at which arguments in support of the fairness and adequacy of the proposed settlement were heard. The Court has thoroughly considered the

Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 2 of 10
arguments of counsel and the submissions of the various objectors to the proposed settlement.
The Plaintiff Class was certified as a mandatory class under Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on March 8, 2004. The certified class is defined as follows:
All inmates with serious medical and dental needs who are or will be incarcerated in prisons operated by or under the jurisdiction of the Ohio Department of Rehabilitation and Correction who, while so incarcerated, are or will be in need of medical and dental care.
This is the class whose claims are to be settled by the proposed agreement.
The settlement agreement, entitled Stipulation for Injunctive Relief, provides unimpeded access to health and dental services consistent with generally accepted medical science, health education, healthy food choices for inmates, and education regarding effects of smoking and second-hand smoke with the ultimate goal of achieving a smoke-free environment. The settlement agreement further provides medical staffing guidelines and training requirements for medical staff, as well as, specific requirements and standards pertaining to the provision of medical and dental care services. Included in the settlement agreement are a detailed plan for ongoing oversight of the Stipulation by a professional monitoring team and provisions for the resolution of disputes arising under, or relating to, the Stipulation.
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Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 3 of 10
The Court received 29 timely filed objections to the proposed settlement. One of those objections (Doc. 108), by counsel for the plaintiff class in Civil Action 4:01-CV-071 in the United States District Court for the Northern District of Ohio, was withdrawn on the record at a November 15, 2005, telephone conference. The other 28 timely objections were filed by inmates. Nine other inmate objections were filed after the November 1 deadline. The Court has considered all of the objections, timely or otherwise.
Class counsel has discussed the substance of the objections with the inmates who filed them and, with one exception, those inmates do not oppose the joint motion for approval of the settlement agreement. The purpose of the objections, as represented by those inmates, is to place issues relating to medical care in the record in this matter. The Court does not perceive any of the inmate objections as an impediment to approval of the settlement agreement.
With respect to the one objector who opposes approval of the settlement agreement, identified by class counsel as Class Member #3, the basis for opposition is distrust of the Ohio Department of Rehabilitation and Correction and not opposition to any of the terms of the settlement agreement itself. The Court is wholly unpersuaded, given the enforcement mechanisms provided by the Stipulation, that such a concern is an impediment to approval of the settlement agreement.
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Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 4 of 10
For those reasons, the objections of Douglas A. Ankrom (Doc. 82); William Ridenour, George Bannister, Charles Boussom, Art Schipper (Doc. 83); Charles Richard Von Schriltz (Doc. 84); John F. Johnson (Doc. 85); Paul Nelson (Doc. 86); John T. Bragg (Doc. 87); Anthony Hoepf (Doc. 89); Yaqub A. Nur (Doc.94); R. Martin (Doc. 95); Daries Sherrills (Doc. 96); William O. Harris (Doc. 97); Carl A. Nelson (Doc. 98); Jerome E. Barnett (Doc. 99); David Zion Shie (Doc. 100); Brent L. Grace (Doc. 101); Louis Merriweather (Doc. 102); Richard J. Lemker (Doc. 104); Phillip Tate (Doc. 105); Robert D. Hunter (Doc. 106 and Doc. 110); Joe L. Deavors (Doc. 109); Edward Mayrides (Doc. 111); Shad D. Mills (Doc. 112); Arkmael Ray Stiles (Doc. 113); Lawrence E. Stewart (Doc. 114); Ronnie Lee Wallace (Doc. 115); Andre Wells (Doc. 116); Reubin J. Beavers (Doc. 118); Jeffrey Hackle (Doc. 119); Theodore B. Hoffert (Doc. 120 and Doc. 121); Tyrias Johnson (Doc. 122); Billy Renshaw (Doc. 123); Gary Roberts (Doc. 124); Wayne Allen Timmons (Doc. 126); Charles F. Stocks (Doc. 127) are hereby OVERRULED.
In addition to the above-referenced objections, the Court has received a motion to join parties (Doc. 103) by William E. Martin and Shannon Haynes. That motion is in the form of an objection to the proposed settlement agreement, which is hereby OVERRULED as not, in fact, being an objection to approval of the agreement but a request for greater levels of care than the agreement provides. In the event that the Court concludes that the agreement provides fair and adequate relief to the members of
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Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 5 of 10
the class, that conclusion amounts to a rejection of the contention of Messrs. Martin and Hayes that the terms of the Stipulation are inadequate. On the other hand, the Court’s denial of the joint motion for approval of the settlement agreement would moot the concerns of the objectors with respect to that agreement. The Court DENIES the motion, in the alternative, of Messrs. Martin and Hayes to be joined as parties in this litigation. That motion is untimely, having been filed three weeks before the scheduled hearing on the joint motion for approval of the settlement agreement. The Court is not persuaded that the joinder of Messrs. Martin and Hayes is required for a just adjudication of this matter. See Fed. R. Civ. P. 19.
Counsel for the Plaintiff Class, three of the Class representatives1, and counsel for the Defendants urge this Court to approve this settlement because they perceive it to be fair, adequate and reasonable.
Standard For Court Approval of Class Action Settlement
1A fourth class representative has yet to be named. Class counsel and counsel for the Defendants in this matter agreed at the November 15, 2005, telephone conference with the Honorable James Gwin and counsel for the parties in Civil Action 4:01-CV071 from the Northern District of Ohio to the addition of one of the named plaintiffs from that action as a class representative in this action. That inmate will be from the Ohio State Penitentiary and will be formally added as a class representative in this action as soon as he is identified and not later than December 9, 2005.
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Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 6 of 10
Pursuant to Fed. R. Civ. P. 23(e) a class action settlement must be approved by the Court before the case may be dismissed or compromised. Three specific steps must be followed: (1) the Court must preliminarily approve the proposed settlement; (2) members of the class must be given notice of the proposed settlement; and (3) a hearing must be held, after which the Court must determine whether the proposed settlement is fair, reasonable, and adequate. Williams v. Vukovich, 710 F.2d 909 (6th Cir. 1983); Bronson v. Board of Education of the City School District of the City of Cincinnati, 604 F. Supp. 68 (S.D. Ohio 1984; In Re Fernald litigation, 1989 WL 267039, 2-3 (S.D. Ohio W.D.). Those three requirements have been satisfied as of this date.
The proposed settlement of this action was preliminarily approved by this Court in October of this year. Preliminary approval gives rise to a presumption that the settlement is fair, reasonable and adequate. Objectors, therefore, have the burden of persuading this Court that the proposed settlement is unreasonable. See Stotts v. Memphis Fire Dept., 679 F.2d 542, 551 (6th Cir.), rev'd. on other grounds sub nom. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1982); Bronson, 604 F. Supp. at 71.
Provisions for Notice to the members of the class, both of the proposed settlement and the fact that a hearing would be held to determine whether the settlement was fair, adequate and reasonable, were approved by this Court on October 7, 2005.
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Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 7 of 10
Class counsel provided notice in accordance with those provisions. The Court conducted the fairness hearing on November 16, 2005, in accordance with the notice. This Court finds that the provision of notice allowed members of the class a full and fair opportunity to consider the proposed settlement and to develop their respective responses. See Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983).
There are six factors to be considered in assessing the fairness, adequacy and reasonableness of the proposed settlement. They are (1) the potential relief that plaintiffs may realize following a full trial on the merits balanced against the relief offered by the settlement; (2) the complexity of the litigation; (3) the status of the proceedings and the amount of discovery completed; (4) the nature of the negotiations; (5) the objections of the class members; and (6) the public interest. See Williams v. Vukovich, 720 F.2d 909, 922 (6th Cir. 1983); Bronson v. Board of Education of the City School District of Cincinnati, 604 F. Supp. 68, 73 (S.D. Ohio 1984).
The Court finds that this case presents substantial obstacles to the Plaintiff class if it were to proceed to a full trial on the merits. In particular, the discovery required to support the claims of the class as they pertain to the prison system on a state-wide basis would have been well-nigh impossible, given the number of institutions involved and the likely expense of hiring the personnel required. By contrast, the proposed settlement provides timely prospective relief on a
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Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 8 of 10
state-wide basis without the necessity of significant discovery. On a similar note, the complexity of the litigation of this matter, were it to have proceeded with respect to all of the institutions in this state, would likely have served as an insurmountable obstacle to the prosecution of the claims. This is particularly true when the fact that the members of the class are, for all relevant purposes, impecunious and without means to bear any of the costs of litigation, which would have been extremely substantial.
The proposed settlement agreement was reached through arm’s-length negotiations between counsel after very little discovery. The necessity of conducting litigation was minimized by the parties’ agreement to engage the services of consultants to investigate and report on the status of medical and dental care in the prison system state-wide. The fact that the “discovery” process was not contentious resulted in a significant cost-savings and a view of the deficiencies in the system that is accepted by the parties and trusted by the Court.
The Court finds little in the way of substantive opposition to the proposed settlement agreement in the abovereferenced objections. As the Court has noted, counsel for the Plaintiff class represents that only one of the inmate objectors opposes the joint motion for approval of the settlement agreement. The basis for that opposition, however, is not related to the substantive terms of the Stipulation. Rather, the objector opposes approval because of distrust in the Ohio
8

Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 9 of 10
Department of Rehabilitation and Correction. The Court cannot assuage that distrust, either by sustaining or overruling the objection. Moreover, the Court is convinced that the agreement itself provides mechanisms for enforcement and for dispute resolution. Those provisions address, to the extent possible, the distrust expressed by the inmate objector.
Finally, the Court is convinced that approval of the settlement of this action serves the public interest. The provision of adequate and appropriate medical and dental care to inmates in the state’s penal institutions is a legitimate public concern. The Stipulation provides mechanisms for assuring all citizens of Ohio that those needs are met responsibly and adequately. Moreover, it reassures the public that public funds will be used for medical and dental care of inmates wholly dependent upon the State for their health needs rather than for legal expenses of the state.
Conclusion
Having considered each of the requisite factors for determining the fairness, reasonableness, and adequacy of the modified proposed settlement, the Court is satisfied that it is fair, reasonable and adequate and does address the settlement of Plaintiffs' claims against Defendants. Consequently, the Court hereby APPROVES the settlement of the claims proposed by the parties, as described in the Stipulation for Injunctive Relief.
9

Case 1:03-cv-00704-SSB Document 141 Filed 11/22/2005 Page 10 of 10 The joint motion for approval of that agreement (Doc. 74) is hereby GRANTED, and the parties are DIRECTED to perform their obligations under the agreement between them.
IT IS SO ORDERED. /s/
Sandra S. Beckwith, Chief Judge United States District Court
10

 
 Case 1:03-cv-00704-SSB Document 75-1 Filed 10/07/2005 Page 1 of 2 ":::-Irl·-L'·'.. u·
'JM·IES :.ONJNI CL ?(

UNITED STATES DISTRICT COURT SOUTIIERN DISTRICT OF OHIO WESTERN DIVISION

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RODNEY FUSSELL, et al., Plaintiffs, vs.
REGINALD WILKINSON, et al., Defendants.

Case No. C-1-03-704 JUDGE SANDRA BECK~

ORDER PRELIMINARILIY APPROVING STIPULATION FOR INJUNCTIVE RELmF. AUTHORIZING CLASS NOTICE. AND SETTING FAIRNESS HEARING

'This matter is before the Court on the joint motion of the parties, pursuant to Fed. R. Civ. P. 23 to approve a proposed settlement of this class action. Having reviewed this matter, and having discussed the proposed settlement with the parties, it is hereby ORDERED: 1. Preliminarv Approval. The proposed Stipulation for Injunctive Relief between Plaintiffs and the Defendants appears, upon preliminary review, to be within the range of reasonableness and accordingly shall be submitted to the class members for their consideration and for a fairness hearing under Fed. R. Civ. P. 23(e). The terms of the settlement are fully set out in the Stipulation for Injunctive Relief, attached as A-1. 2. Hearing. A hearing shall be held in the Courtroom of Chief District Judge Sandra S. Beckwith, Potter Stewart U.S. Courthouse, Room 822, 100 East Fifth Street, Cincinnati, OH 45202, on November 16, 2005 at 3:00p.m., to consider final approval of the settlement.

1

Case 1:03-cv-00704-SSB Document 75-1 Filed 10/07/2005 Page 2 of 2

3. Objections. All objections to the proposed settlement of the lawsuit must be filed with the

Clerk of Court and postmarked no later than November 1, 2005. At the hearing, the objections

by class members shall be reviewed and considered by the Court. Counsel for the class and

defendants should be prepared to provide other information, as appropriate, bearing on whether

the settlement should be approved.

4. Notice. The class notice submitted by the parties and attached hereto as A-2 is hereby

approved. Defendants are directed to post such notice in all of the housing units and all of the

areas where medical and dental service is provided to inmates, in all law libraries and in other

prominent locations in each correctional institution, where all inmates have access to said notice.

Defendants shall bear the cost of providing notice of the settlement, including cost of

reproducing and effecting delivery of such notice. Inmates whose access to common areas is

limited due to, but not limited to, confinement in segregation or in the infrrmary, shall be

provided with individualized notice as soon as is practicable. The notice shall remain posted

until the fairness hearing.

Defendants shall also place in the library of every correctional facility a reasonable

number of copies of (1) this Order; (2) the class notice; (3) the MIT report; and (4) the

Stipulation for Injunctive Relief. Should the court approve and enter the Stipulation for

Injunctive Relief after the fairness hearing, a copy of these materials shall remain in the libraries,

for five years from the date of this order.

SO ORDERED.

•
~· fo•~e~~« ,
s~~klith
United States Chief District Judge Southern District of Ohio

2

 
 Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 1 of 90

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

S.H. a minor child, and all others similarly situated, et al.,
Plaintiffs, v. THOMAS STICKRATH,
Defendant

: Case No. 2: 04-CV-1206 : : : : : Judge Algenon L. Marbley : : STIPULATION FOR INJUNCTIVE : RELIEF : : : :

I. INTRODUCTION

1. This Stipulated Judgment is entered into by the parties to resolve all of the claims

made in this action and seeks to build on initiatives already commenced by Ohio

Governor Ted Strickland and Ohio Department of Youth Services (“DYS”)

Director Thomas Stickrath to fundamentally improve the care and treatment of

youth in DYS custody. In this case, the Plaintiffs S.H., a minor child by and

through her next friend Brenda Woods; D.J, a minor child by and through her next

friend Vera Johnson, and B.F., a minor child, by and through his next friend Rod

Fuller, bring a number of claims on behalf of the class of all youth who are or will

be in the custody of and under the supervision of DYS, relating to their care and

treatment by Defendant, Thomas Stickrath, Director of DYS.

2. This action was filed by Plaintiffs on December 20, 2004. Plaintiffs allege a

system-wide failure regarding conditions of confinement within facilities operated

by DYS that endanger Plaintiffs’ physical health and safety; threaten Plaintiffs’

Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 2 of 90
emotional and psychological well-being; deprive Plaintiffs of adequate programming, education, medical and mental health care, and dental care; and deprive Plaintiffs of due process of law. On July 9, 2007, the court entered an order certifying this case as a class action and naming Alphonse A. Gerhardstein, Kimberly Brooks Tandy, Jennifer M. Kinsley, Maria Ramiu, and David Singleton as class counsel. The class is defined as:
All persons who are or who will be committed to the legal custody of the Department of Youth Services (DYS) and housed in one of its eight facilities at Circleville Juvenile Correctional Facility, Cuyahoga Hills Juvenile Correctional Facility, Freedom Center, Indian River Juvenile Correctional Facility, Marion Juvenile Correctional Facility, Mohican Juvenile Correctional Facility, Ohio River Valley Correctional Facility, Scioto Juvenile Correctional Facility, or housed in Lighthouse Youth Center, Paint Creek, a private facility.
(Order 7/09/07, Doc. 67) 3. On May 18, 2007, the Court approved a case management plan under which the
parties agreed to a joint fact finding team. The fact finding team was headed by Fred Cohen, Esq., and it proceeded with a thorough, independent, neutral examination of the facts related to the duration and conditions of confinement at facilities operated by DYS, including but not limited to excessive use of force; arbitrary and excessive use of isolation and seclusion; arbitrary and excessive discipline; abusive violation of privacy; inadequate mental health care; inadequate health care; inadequate educational services; inadequate programming; failure to adequately train and supervise staff; failure to protect from harm; failure to provide an adequate grievance process; and failure to provide equal access to placement and services for females. The Team filed its report with the court in a timely fashion on December 31, 2007. (Cohen Report). The parties agree with the Report’s major findings concerning use of force, use of seclusion, and provision of medical, mental
2

Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 3 of 90
health, and education services. The Report, which is hereby incorporated, establishes that the conditions of confinement for the members of the class fall below the constitutional and statutory standards in all categories addressed by the Fact Finding Team. The Report served as the basis for the extensive, informal negotiations that followed. 4. By entering into this Stipulation, the Defendants do not waive, and are not authorized to waive, the sovereign immunity of the State of Ohio, or the State's immunity from suit guaranteed by the Eleventh Amendment. 5. The parties have conducted extensive informal negotiations since the filing of the Fact Finding Report. These negotiations have included the parties as well as legal and medical experts in juvenile treatment and care. These negotiations have been undertaken in good faith and at arm’s length allowing the parties to reach agreement on the procedures and substantive criteria the parties will follow for ensuring the delivery of constitutionally and legally adequate services. The parties freely and voluntarily, and with the advice of counsel, enter into this Stipulated Judgment for that purpose. 6. The Defendants agree to use their best efforts to obtain the necessary funding to improve the juvenile system and to otherwise comply with the standards of care included in this Stipulation. 7. This Stipulation is narrowly drawn to meet the applicable constitutional and statutory standards and the following terms and conditions are to serve as the basis for the injunctive relief encompassed herein.
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II. DEFINITIONS 8. In this Stipulation, the following definitions apply:
A. “Cool Off” means isolating a youth in his/her own room because, and only so long as, the youth poses a significant risk of danger to himself or others.
B. “Circleville” means the Circleville Juvenile Correctional Facility, located at 640 Island Road, P.O. Box 598, Circleville, Ohio, and any facility that is built to replace or supplement the Circleville Juvenile Correctional Facility.
C. “Clinicians” or “clinical staff” with respect to mental health services means psychologists, licensed master’s level social workers, master’s level psychology assistants, and psychiatric nurses. This would include licensed social workers and professional counselors under appropriate supervision.
D. “Comfort Room” means a closely supervised room on mental health or other treatment units equipped with sensory motor manipulatives designed specifically to allow youth the opportunity to engage their five senses to develop and practice more positive coping strategies.
E. “Cuyahoga Hills” means the Cuyahoga Hills Juvenile Correctional Facility, located at 4321 Green Road, Highland Hills, Ohio, and any facility that is built to replace or supplement Cuyahoga Hills Juvenile Correctional Facility.
F. “DYS” means the Ohio Department of Youth Services. G. “Effective Date” means the date this Stipulation is entered by the Court. H. “Evidence-based” means grounded in peer-review quality empirical research that
measures outcomes and demonstrates effectiveness.
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 5 of 90
I. “Facilities” means Scioto, Indian River, Ohio River Valley, Cuyahoga Hills, Circleville, Freedom Center, Paint Creek, Marion, and any other facilities that are built or utilized to house members of the class during the term of this Stipulation, collectively.
J. “Freedom Center” means Freedom Center Residential Treatment Center located at 8101 Dublin Road, Delaware, Ohio, and any facility that is built to replace or supplement Freedom Center Residential Treatment Center.
K. “Implement” means to give practical effect and ensure actual fulfillment by concrete measures, including appropriate training of relevant staff.
L. “Include” or “including” means “include, but not be limited to” or “including, but not limited to.”
M. “Indian River” means the Indian River Juvenile Correctional Facility located at 2775 Indian River Road S.W., P.O. Box 564, Massillon, Ohio, and any facility that is built to replace or supplement Indian River.
N. “Isolation,” “isolate,” and "isolating" mean placement of a youth alone in a room from which the youth's ability to exit is blocked. The term isolation does not apply to locking a youth in a room during normal hours of sleep.
O. “JCOs” mean the Juvenile Correctional Officers who work at one of the facilities. P. “Marion” means the Marion Juvenile Correctional Facility located at 332 Marion
Williamsport Road, Marion, Ohio, and any facility that is built to replace or supplement Marion.
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 6 of 90
Q. “Mohican” means the Mohican Juvenile Correctional Facility located at 1012 ODNR, Mohican 51, Perryville, Ohio, and any facility that is built to replace or supplement Mohican.
R. “Monitor” means an individual having experience and education or training in the field of juvenile justice who is appointed by the court to oversee the implementation of this Stipulation by evaluating and reporting on the State’s progress.
S. “Ohio River Valley” means the Ohio River Valley Juvenile Correctional Facility, located at 4696 Gallia Pike, P.O. Box 1000, Franklin Furnace, Ohio, and any facility that is built to replace or supplement Ohio River Valley.
T. “Over-familiarity” means any inappropriate or unduly intimate or informal conduct between juveniles and staff or employees including conduct that may lead to a romantic or sexual relationship, such as exchanging letters, providing special favors, or inappropriate touching.
U. “Paint Creek” means Paint Creek Youth Center, located at P.O. Box 586, Bainbridge, Ohio, and any facility that is built to replace or supplement Paint Creek.
V. “Qualified mental health professional” means a mental health care provider sufficiently trained and currently licensed to provide the services he or she undertakes to provide.
W. “Quality Assurance/Improvement Program” means a system of self-auditing and improvement to assess the implementation and effectiveness of all remedies
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 7 of 90
instituted pursuant to this Stipulation, to identify deficits that may exist, and to effectuate new measures to cure deficits identified. X. “Rehabilitative Services” means programming provided to all youth in the Facilities designed to create or restore to the youth socially acceptable behaviors and values. Y. “Restraints” means any chemical or mechanical device used to control the behavior of a youth. Z. “Scioto” means the Scioto Juvenile Correctional Facility located at 5993 Home Road, Delaware, Ohio, and any facility that is built to replace or supplement Scioto. AA. “Seclusion” has the same meaning as the term “isolation”. BB. “Serious Incidents” means critical incidents such as uses of force with injuries requiring more than first-aid treatment; allegations of child abuse, of overfamiliarity or other, inappropriate staff relationships with youth, of staff-on-youth violence, of serious youth-on-youth violence, of significant actual or significant attempted self harm, of serious youth-on-staff violence, inappropriate staff relationships with youth, sexual misconduct between youth and abusive institutional practices or any other incident determined by the Director. CC. “Special needs youth” means youth who are in need of accommodation due to mental retardation, mental illness, physical disability, developmental disability or other similar condition or status. DD. “State” means the Defendants as described in Paragraph 1, above, also referred to as DYS.
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 8 of 90
EE. “Suicide Precautions” means any level of watch, observation, or measures to prevent self-harm.
FF. “Superintendent” means an individual who is appointed to oversee all aspects of facility operations and is responsible for all staff and youth at that facility.
GG. “Train” means to instruct in necessary skills, such that the trainee has the demonstrated proficiency to implement those skills as and when called for in the training. “Trained” means to have achieved such proficiency.
HH. “Treatment” means an evidence-based or a promising practice supported by research intervention designed to meet a youth’s needs within a continuum of care to promote well-being and successful reentry into the community.
II. “Unified Case Plan (UCP)” means the primary DYS document used to establish and describe youth and staff responsibilities regarding rehabilitative services, reentry preparation, release authority and court expectations. The UCP shall document special concerns and summarize youth progress and completion of programs in all areas.
JJ. “Youth” means any juvenile or juveniles committed by a court to the custody of DYS, and residing at, the Facilities during the operation of this Stipulation. III. SUBSTANTIVE REMEDIAL MEASURES GENERALLY A. SCOPE
9. This Stipulation encompasses all youth who are or will be in the custody of and under the supervision of DYS. The facility at Paint Creek did not share the problems found at the other facilities. Therefore the youth housed at the Paint Creek Facility shall be subject to the sections entitled Guiding Principles; Release
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 9 of 90
from DYS Custody; Grievances; Monitoring; Fees and Miscellaneous. As additional DYS facilities are opened during the term of this Agreement the parties shall agree on which provisions of this Agreement shall apply to such facilities. This Stipulation does not cover youth who are released from custody and on parole in the community.
B. GUIDING PRINCIPLES 10. DYS shall provide youth in its charge with a safe and humane environment.
DYS shall provide youth individual care, treatment, and rehabilitative services in the least restrictive setting consistent with the youth’s needs, documented security concerns, and generally accepted professional standards of care. In no event will the level of care in such areas such as safe environment, mental health, special education, programming or any other requirement encompassed in this Stipulation fall below the level described or required in this Stipulation, and the State aspires to consistently exceed these levels. 11. The parties agree with the DYS mission statement: “The mission of the Ohio Department of Youth Services is to encourage positive change in the lives of youthful offenders through collaborative partnerships and culturally relevant therapeutic and academic interventions that support public safety and prepare youth to lead productive lives.” 12. The parties recognize that while certain aspects of this Stipulation are aspirational, all short term, intermediate and long term decision making must follow an established set of guiding principles that meet the letter and spirit of this Stipulation. Those principles are set forth herein.
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 10 of 90
13. Comprehensive Continuum of Care in a Regionalized Services Delivery System. DYS shall develop a continuum-of-care system that emphasizes prevention, intervention and treatment in local communities using evidencedbased or promising practices based on evidence programming, academic and therapeutic based residential care, and a strong system of aftercare to assist youth with successful re-entry after incarceration. A regional service delivery system should be created that supports the use of small (12-48 bed) community-based facilities in order to keep appropriate juveniles as close to home as possible, and make use of community services. DYS shall reduce the population of the current facilities in accordance with a plan and schedule to be prepared by DYS in consultation with plaintiffs. The goal regarding the existing facilities shall be that no living unit in any DYS facility shall house a population that exceeds that unit’s rated capacity. The goal of the regional plan is to expand regional beds while downsizing or closing existing facilities. The following factors shall be addressed by the parties in the development of a plan to achieve these goals: a. The impact of beds to be added by the opening of regional facilities; b. The impact and implementation of the uniform risk assessment tool that is expected to be in use by Ohio Juvenile Judges in 2009; c. DYS agrees to provide population numbers to the Monitor at intervals determined by the parties, including the Monitor. If upon review of the population numbers the Monitor determines that notification to the parties is warranted, said notification will be the sole responsibility of
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 11 of 90
the Monitor. d. Regular communication with the juvenile judges and other stakeholders
regarding the limitations on state resources and the need to be efficient with said resources; e. Ongoing assessment of the plan on public safety; f. Ongoing assessment of the plan on local detention facilities, CCFs, and other community facilities and programs; g. Ongoing review of the Reclaim formula in order to facilitate the achievement of the goals; h. Implementation of the commitment to plan for re-entry with each youth; from the moment he/she enters DYS custody; i. Impact of any changes in method of determining release from custody; j. Impact of the security classification of all of the youth. k. Whether, on agreement of the parties, based on appropriate juvenile correctional reasons, the goal with respect to a particular living unit should be modified; provided, however, that no modification would present a threat to security or delay the delivery of services to any youth. 14. Task Force. In order to assist the parties to accomplish the regional service delivery goal and the goal of reducing institutional population set out in paragraph 13, above, the existing Cognitive Behavioral Therapy (CBT) Task Force of stakeholder representatives will continue its work of developing and opening small (12-48 bed) regional facilities to serve youth committed to DYS
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 12 of 90
that are appropriate for placement in regional facilities. The appropriate task force subcommittee will continue to explore the extent to which existing Community Correctional Facilities (CCF) should be addressed in the ultimate plan for DYS. The transition plan shall be completed no later than six months after the effective date of this Stipulation. The task force, using CBT and other concepts, shall work broadly to establish a plan to retain juvenile offenders in the community when possible; substantially reduce the current reliance on institutional confinement; and, where appropriate, return those juveniles who must be institutionalized to the community through a series of graduated programs responsive to individual needs. It is anticipated that the parties and Monitor or a representative shall participate in the task force. 15. Least Restrictive Alternatives. The DYS continuum of care for youth should provide rehabilitation while protecting the community. DYS secure facilities should normally be utilized to incarcerate and treat high-risk, serious and chronic juvenile offenders. The least restrictive appropriate alternative should always be preferred in order to decrease the number of youth in secure care, including community correctional facilities or other residential programs. This principle shall be communicated to Ohio’s juvenile judges, who shall be encouraged to exercise their discretion consistent with this principle. 16. Cost Effective Measures. The system developed should maximize cost effectiveness and the use of taxpayer’s money. 17. Equitable Treatment for All Youth. The continuum of care should promote equal and equitable treatment for all youth. DYS must focus on the
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disproportionate commitment of youth of color and work to identify and reduce disparities. DYS must also develop programming that is culturally sensitive, gender sensitive, and disability-responsive. 18. Effective and Consistent Admission Assessment and Ongoing Assessments. Placement and treatment decisions must be formed by validated risk and need assessment instruments that are multi-pronged and ongoing to respond to the changing needs of youth; to ensure that youth are placed in the least restrictive environment possible; and to ensure that youth are not incarcerated longer than necessary for successful reentry. 19. Youth-Focused Care. The DYS system of care must reflect the individual, familial, social, educational, developmental and psychological needs of youth served. DYS shall implement individualized, dynamic treatment planning and programming informed by principles of adolescent development and facilitated through active youth involvement. 20. Quality Treatment Interventions. DYS shall employ interventions that incorporate appropriate professional standards of care to include outcome measures to support effectiveness. 21. Engagement of Families. DYS shall strive to involve family, family surrogate, or other significant adult relationships at all levels in the youth’s care, and maintain ongoing, family-friendly, open communications regarding youth throughout their stay. DYS’ family-centered philosophy shall include youth offenders who are themselves parents and seek to be a caregiver in their children’s lives.
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22. Qualified Work Force Properly Deployed. Professional and correctional staff must be trained, retained and supervised through effective leadership to be a workforce that is youth-focused and strength-based in its approach. Hiring, training and ongoing management of personnel to build adolescent development expertise, cultural competence and a genuine sense of care and concern for the youth is essential. DYS shall expand and refine the role of JCOs beyond their current, nearly exclusive function as custodial staff. DYS shall continue to support and shall adequately staff unit management in the current facilities.
23. Education Opportunities. An education system that provides opportunities for continued educational and/or vocational training is essential. The education component should be designed with appropriate assessments and opportunities to advance students at their own pace, taking into account any special needs that have been identified. Educational services must necessarily be balanced with security needs, but nonetheless must comply with all state and federal laws and regulations.
24. Grievance System. An effective grievance process that is responsive to youth needs and concerns, and which timely investigates complaints and communicates with youth is essential. Youth must have ready access to the grievance system without fear of intimidation or reprisal if they use it.
25. Access to Advocates/Attorneys. Youth must have easy access to advocacy organizations and attorneys to ensure they are informed about their rights and can exercise their rights. Youth have a constitutional right to challenge the
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Case 2:04-cv-01206-ALM-TPK Document 108 Filed 05/21/2008 Page 15 of 90
fact, duration or conditions of their confinement, and must have the assistance of attorneys to aid them in making legal challenges. Reasonable attorney access shall not be hampered. 26. Strong Re-entry Programs. Re-entry efforts should begin at the time of admission and utilize a wrap-around case management function which includes residential options for youth who cannot return home to their families. 27. Fair and Effective Release Process. A system for decision making regarding release must be based upon accurate and current information regarding a youth’s risk and needs, the due process rights of the youth, timely and ongoing communication with treatment staff, parents or other responsible adults, and must comply with notifications as required by law. Release decisions should be fair, consistent, and result in youth that are held no longer than necessary for successful re-entry. There should be accountability and oversight of decision making regarding release. 28. Accountability and Monitoring. A strong system of accountability must be put in place through systematic monitoring and evaluation of programs and treatment of juveniles.
C. IMPLEMENTATION PRIORITIES 29. In accordance with the findings in the Cohen Report, the parties agree that use
of force by staff, isolation practices, the absence of acceptable mental health care and other appropriate programming, overcrowding, and the deficiencies in education are such that class members are at risk physically, psychologically, and educationally.
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30. All policies and procedures (P & P) in the areas described in paragraph 29 shall immediately be subject to review and revision as a joint effort by DYS and the Monitor conducted in consultation with the class counsel.
31. All personnel, environmental, training, and other necessary changes required to implement the revised policy and procedures in the above described areas shall be undertaken and completed with all deliberate speed and in accordance with specific schedules submitted by DYS and after consultation with class counsel.
32. Plan for Reforming Release: The parties shall work with the Monitor and prepare a plan for reforming release standards and procedures. This plan will explore potential revisions of the release authority statute and/or rules; the impact of sentencing that requires mandatory time for certain crimes; whether court jurisdiction should extend over each youth throughout commitment, and other issues related to release that may seem relevant to the task force. This plan shall be completed within sixty days of the effective date of this Stipulation. After the plan is completed those measures within the power of DYS to implement shall be promptly implemented. The parties shall work together to secure the agreement of other branches of government with respect to those measures that require the cooperation of other branches of government for implementation. While this planning process is underway the stay of the litigation in J.J. v. ODYS, No. 2:07-cv-170 (S.D. Ohio) will continue. Should the parties reach an impasse regarding release from custody one or both of the parties may move to lift the stay and litigate that case.
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D. REVIEW OF RECENT CHANGES 33. Within thirty days of the effective date of this Stipulation, DYS shall submit to
the Monitor and serve on class counsel a list and detailed description of all changes or additions made by the agency from May 18, 2007. 34. Unless it is self-evident or included as part of the text of listed changes or additions, DYS shall include a brief description of the history of the program upon request by the Monitor.
E. POLICIES & PROCEDURES 35. All existing Policies and Procedures (P& P) not encompassed by the
provisions of Section C will be reviewed and revised as needed. The policy and procedures will be designed to meet or exceed the minimum level of care required by the relevant statute or constitutional Amendment. The initial policy and procedures review shall be initiated by DYS officials working with the Monitor, subject to review by class counsel. 36. The policy and procedures review and revision should be completed within nine (9) months of the effective date of this Stipulation. Upon completion of review and revision, DYS shall begin the process of formal adoption and implementation, and shall modify all post orders, job descriptions and performance evaluation instruments in a manner consistent with the revised policy and procedures. 37. Following formal adoption, DYS shall launch a training program designed to familiarize all relevant personnel, including clinical treatment staff, unit staff and JCOs with new policies and procedures. To the extent possible, training
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on the revised policy and procedures shall occur prior to implementation. 38. Staff training on policy and procedures shall be included in the annual in-
service training and shall emphasize those aspects of the policy and procedures specific to staff roles in the facilities. All DYS training programs shall include provisions for testing those completing the training programs. 39. Mental Health and Medical policy and procedures shall be general and systemwide as well as site-specific. Site-specific measures are deemed particularly important at facilities serving a special population (e.g., Scioto girls, facilities with special mental health units). 40. Site-specific measures may not be inconsistent with the system-wide policy and procedures. 41. Following adoption and implementation of the revised policy and procedures, Central Office will annually review each policy and procedures. The review shall not be pro forma. Subject to modification within the discretion of the Monitor, documentation will identify the participants, basis for the review, and the rationale for each change to be made and for the continuation of existing provisions left without change. 42. This section requires overall review and revision of policy and procedures and subsequent sections will contain more specific principles or content for particular areas.
IV. INTAKE AND CLASSIFICATION 43. Admissions and Intake: DYS shall develop and implement policies, procedures,
and practices to establish a consistent, orderly admissions intake system that is
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conducive to gathering necessary information about youth; to disseminating information to staff providing services and care for youth; and to maintaining youth safety. DYS shall ensure that all staff is attentive to the heightened risk of suicide on facility intake units. 44. Assessment and Screening. To the extent possible assessments completed at the local level shall be used to minimize time in the reception center. DYS shall ensure that trained personnel implement a standardized process for assessments and screenings to capture information in a number of areas including, but not limited to, positive adaptations to past treatment experiences; coping mechanisms, strengths and resiliencies; family history; work experience and career goals; cognitive assessment and adaptive functioning/school behavior; and diagnoses linked to functional problems. DYS should continue to consider the inclusion of additional validated assessment instruments. 45. Orientation. The orientation shall clearly set forth the rules youth must follow while at DYS; explain how to access medical and mental health care and the grievance system; include simple directions for reporting abuse and assuring youth of their rights and responsibilities to be protected from retaliation for reporting allegations of abuse, and provide information pertinent to the youth's participation in DYS programs. The rules for all programs should also be posted conspicuously in the living units. 46. Introductory Handbook: DYS shall revise the Introductory Handbook to reflect DYS’ mission. 47. Classification and Housing. Youth shall be housed pursuant to a validated
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security classification system that assures placement in a housing unit appropriate to the treatment and programming needs of the youth and the risks of harm associated with that youth.
V. HOUSING UNITS 48. Unit Staff Central to Service Delivery. Each youth shall continue to be assigned
to a specific housing unit. Units shall be staffed by a unit manager and social worker(s). All services delivered to the youth shall be coordinated through the unit manager. Reentry planning for the youth shall start as soon as the youth enters the unit and continue through release. Unit staff shall be responsible for communicating with the family or significant adult and engaging those family or family surrogate figures in the life of the youth in a meaningful way. Unit staff shall also participate as appropriate in the Interdisciplinary Team and/or rehabilitation teams associated with the youth on the unit. 49. Unit Staffing. There shall be sufficient staff at the unit level to perform these functions in a manner that allows timely reports, assessments, meetings and information sharing regarding each youth. Ordinarily, no unit social worker should have more than twenty youth on his/her caseload at any one time. 50. Phones in Units. The phone system within each unit shall allow adequate low cost contact with family or family surrogates, and significant others via telephone, in particular when distances between a youth’s home and the JCF are great. 51. Records. DYS shall establish a policy and procedure requiring that appropriate unit staff have access to all records necessary for adequate delivery of services on the unit.
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VI. REHABILITATION AND PROGRAMMING 52. All Youth Entitled to Rehabilitation. Rehabilitation refers to the process of
creating or restoring to the individual socially acceptable behaviors and values, and is not dependent on a clinical diagnosis. 53. Unified Case Plans. Every youth in the custody of DYS is entitled to a unified case plan and the staff and physical resources designed to implement such plan. 54. All Staff Participate in Rehabilitation. All staff members who have regular contact with youth shall have a defined role in the rehabilitative effort. 55. Routine Interactions With Youth Designed to Promote Positive Behaviors. DYS shall maintain an environment within each facility that creates a socio-cultural context that supports social adjustment and the development of pro-social skills. Behavior will be managed through the recognition that adolescents learn from one another as well as adults in authority, via observation, imitation and modeling. The rehabilitation planning for youth shall take into consideration cognitive, behavioral and environmental influences. DYS shall develop behavior management strategies that will support social development and social adjustment of youth. DYS shall develop and implement policies, procedures and practices that ensure effective resources to assist all staff in the creation of a youth monitoring system that is consistent throughout all facilities. Behavior intervention methods will be utilized as part of the daily activity of youth in a fair, firm, and consistent manner throughout all DYS facilities. Implementation of adopted methods will encourage the increase of positive behaviors and improved social adjustment and the decrease of attention-seeking negative and self-destructive behaviors.
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56. Structured Programming. The DYS rehabilitation plan for each youth shall be implemented in the context of a system-wide range of structured rehabilitative services, including an appropriate mix of physical, recreational, or leisure activities, during non-school hours and days (“Structured Programming”). DYS shall develop and implement Structured Programming at each facility from the end of the school day until youth go to bed, and on weekends. For youth housed in closed room environments, Structured Programming shall be designed to ensure that youth are not confined in locked rooms except: (a) from after Structured Programming to wake-up; (b) as necessary where the youth poses an immediate risk of harm to self or others; or (c) following an adequate disciplinary hearing, pursuant to an appropriate disciplinary sanction. Structured Programming shall be designed to modify behaviors, provide rehabilitation to the types of youth committed to each facility, address general health and mental health needs, and be coordinated with youth's individual behavioral and treatment plans. DYS shall also ensure that large muscle exercise is available consistently for all youth for a minimum of one hour daily. DYS shall also ensure that youth receive programming activities that are required for parole eligibility in a timely manner.
57. Volunteers. The Rehabilitation program shall continue expanding the use of volunteers.
58. Special Needs Youth. DYS shall ensure that youth with special needs (e.g., youth with mental illness, mental retardation, developmental disabilities, or physical disabilities) obtain appropriate care, programming, and group therapy (as appropriate), including any accommodations in other programming related to their
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special needs. 59. Comfort Rooms. DYS also shall ensure that there is a clearly articulated program
with policies and procedures for utilizing any comfort room. 60. Quality Assurance for Rehabilitation. DYS shall develop quality assurance
mechanisms to assess whether the program is implemented correctly and consistently across all settings and to assess the effectiveness of interventions used. DYS shall annually survey facility staff and youth to secure feedback on program implementation. 61. Rehabilitation Program Development and Staffing. Within 180 days of the effective date of this Stipulation, DYS shall prepare a detailed rehabilitation program describing the behavior management plan, Structured Programming and all components thereof (e.g., structured recreation, weight loss, arts and crafts, etc.) and the proposed staffing both in terms of quantity, training and education, and allocation. The rehabilitation program shall be reviewed by the Monitor and class counsel. Staffing for rehabilitation programming and the allocation of such staff shall be the subject of a detailed annual review and report by the Monitor, who shall include any specific recommendations for change. 62. Sex Offender Programming. All youth entering DYS who have been adjudicated for a sexually oriented offense shall receive assessments and testing specific to their needs. Upon completion of the assessment process, licensed professionals shall recommend programming specific to the youth’s treatment needs that is normed for adolescent populations, and reliant upon objective, evidence-based criteria. A Unified Case Plan as described in
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paragraph 53 shall be developed in collaboration with the youth, the youth’s family, licensed professionals and the youth’s Inter/Multi Disciplinary Team to identify how the individual needs of the youth shall be met. DYS shall develop a sex offender program to be delivered in a hierarchical system of care approach to address the individual needs of the youth and the level of the offense. All professionals working with the sex offender population shall receive annual training specific to their level of intervention with the youth. Policies, procedures, practices and quality assurance measures shall be created to address program service delivery specific to the sex offender population. 63. Sex Offender Programming and Release. DYS shall ensure that release decisions for those who receive Sex Offender programming are consistent with the process employed with other offenders, and properly accommodate any special criteria imposed by state or federal law. Juvenile offender registrants are not required to comply with the residency restriction codified in R.C. 2950.034 and DYS shall not enforce a residency restriction against such juvenile offenders1. 64. Ordinarily, no youth should have his/her stay at DYS extended because of a delay in providing services at the facility level. Short extensions may be appropriate if a youth is very close to achieving a GED or finishing a program if completion of that program in the community would cause the
1 The residency restriction only applies to an offender “who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense.” R.C. 2950.034 (A). By definition, a juvenile offender registrant “means a person who is adjudicated a delinquent child.” R.C. 2950.01(M) (Emphasis added).
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youth an undue hardship. An extension may also be appropriate where necessary to complete a program required by a statute as part of the disposition.
VII. SAFE ENVIRONMENT: STAFFING, FORCE, CRISIS MANAGEMENT, RESTRAINT, INVESTIGATIONS
65. Generally. DYS shall, at all times, provide youth in the facilities with safe living conditions. As part of this requirement, DYS shall take appropriate measures to ensure that youth entrusted to DYS shall receive individual care, treatment, and rehabilitative services in the least restrictive setting, consistent with the youth's needs, documented security concerns, and generally accepted professional standards of care.
66. JCO Staffing. Adequate staffing is critical to safety for youth and staff alike. DYS shall ensure maintenance of staff levels permitting staff to supervise youth safely, protect youth from harm, allow youth reasonable access to medical and mental health services, and provide adequate time for out-of-room activities. DYS shall complete its current JCO staffing study and attempt to fill the positions identified in that study within 180 days of the effective date of this Stipulation. The staffing study and implementation efforts shall be submitted to Class Counsel for review and to the Monitor for evaluation and review upon the effective date of the Stipulation. The parties recognize that DYS is attempting to reduce the youth population by the effective date of this Stipulation. DYS shall have a period of one year from the effective date of this Stipulation to report on whether the staff hired pursuant to its JCO staffing study is adequate to meet the goals of this Stipulation. Class Counsel shall review said report and provide input to the Monitor, who shall
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determine whether the goal of adequate JCO staffing has been achieved. 67. JCO Qualifications. DYS shall take all reasonable means to employ only
individuals fit to work with youth residents as JCOs. DYS shall conduct an appropriate background check, including a criminal record check on all candidates for employment. 68. JCO Duties and Training. JCO duties shall include tutoring, homework assistance and other participation in youth programming and activities. Training shall be directed to improving the JCO’s skill development from a strength-based or positive perspective. JCO training must embrace the rehabilitation program and philosophy surrounding services to youth. 69. Staff Training. DYS shall train all institutional staff in behavior management, deescalation techniques, appropriate communication with youth, and crisis intervention before staff may work in direct contact with youth. Training for all staff shall have lesson plans that exist separate from PowerPoint and contain training objectives, useful participant handouts, and an evaluation experience that identifies participants who have not acquired the basic skill levels through the training. DYS shall upgrade and expand its training materials, particularly audiovisual resources that are juvenile specific. The Training Department should review the juvenile justice training resources at the University of Illinois at Springfield and at the Kentucky Department of Juvenile Justice as models for use at DYS. DYS shall collect feedback and information from each JCF regarding local training needs for staff. DYS shall conduct focus groups to evaluate and improve On the Job Training.
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70. Use of Force – Generally – Legal Standard Adopted. The State shall, at all times, provide youth in the Facilities with safe living conditions. As part of this requirement, the State shall take appropriate measures to ensure that youth are protected from abuse and neglect, use of excessive force, undue seclusion, undue restraint, and over familiarization. The State shall develop and implement comprehensive policies, procedures and practices limiting use of force on youth to situations where it is objectively reasonable and necessary. Staff shall be required to adequately and promptly document and report all uses of force.
71. Guiding Principles for Use of Force Policies. In developing use of force policies, procedures and training materials, DYS will be guided by the following: a. DYS policies, procedures and practices should require use of the least amount of force appropriate to the risk posed by the youth and that require staff to adequately and promptly document and report all uses of force by staff; b. force should be limited to situations where the youth is currently physically violent and poses an immediate danger to himself/herself or others; or the youth is affirmatively physically resisting institutional rules; or c. the institution has attempted and exhausted a hierarchy of non-physical alternatives; i. the attempt to use non-physical alternatives has been documented; and ii. a supervisor is present and supervising the use of force;
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d. policies should: i. limit the amount, form, and duration of uses of force to the minimum necessary to prevent harm to persons or obtain compliance with institutional rules (where compliance is necessary under the circumstances), and require that all staff implementing such force be trained appropriately; and ii. explicitly state that verbal abuse and physical punishment are never acceptable, and expressly prohibit use of force practices that are incompatible with minimum actions necessary to prevent harm or obtain compliance with reasonable and proper orders including but not limited to practices such as inappropriate shoving, pushing, kicking, or striking youth, or inappropriately holding youth in a manner inconsistent with the techniques formally approved and taught to staff at the facilities; and
e. policies should ensure that JCO’s are closely supervised and monitored, that all staff are held accountable for the use of excessive force or abuse through appropriate disciplinary action, and that all staff persons who are mandatory reporters of abuse under Ohio law have reviewed and signed a statement setting forth those obligations.
72. Gangs. DYS shall utilize strategies that are appropriate and fair to staff and youth alike for management of the problems caused by youth gangs within the facilities.
73. Video Monitoring. DYS shall ensure that adequate video camera coverage is provided throughout all facilities, including in sallyports and other isolated areas, to
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enhance necessary monitoring and to avoid the risks of self-harm and other potential abuse. 74. Crisis Management Generally. DYS shall ensure that Safety Plans, Special Management Plans (SMPs), isolation and any other procedure designed to decrease severe and/or chronic problem youth behavior, including assaultive and/or threatening behavior, are individualized, strength-based, tied to treatment goals, and provide adequate incentives for changing youth behavior. DYS shall ensure that such procedures are time limited, with graduated punishments and incentives, and are carefully monitored and supported by a representative of the Interdisciplinary Team. 75. Special Management Plans and Isolation. DYS shall ensure that SMPs and other comparable procedures for youth will involve a member of the Interdisciplinary Team to signoff in non-mental health units. DYS shall ensure that such procedures for youth who are on the mental health caseload or who are being followed by Psychology, require approval by a psychologist and are reviewed on at least a weekly basis. DYS shall ensure that SMPs and other comparable procedures for youth involve a careful assessment of facts beyond the immediate charge or violation. DYS shall ensure that such procedures are reviewed to determine the frequency and outcomes of any previously-used plans, that the procedures are designed to meet individual youth needs even when the only consideration is discipline or correction of a recurring problem behavior, and that the plans offer acceptable behaviors or new skill development to resolve problems effectively. 76. Crisis Management Policies. DYS, with consultation from the Monitor and class
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counsel, and as part of a plan to revise policies regarding seclusion, isolation and crisis management, will dramatically reduce and eventually close the intensive programming units as currently operated. Said plan will be developed within 60 days of the effective date of this Stipulation. The principles that will guide development of this plan include:
a. Ensure that any youth placed in restraint beyond one hour is assessed by a trained medical professional, in a documented manner, and is regularly monitored by a JCO trained in the administration of restraint.
b. Clearly specify the factors warranting the imposition of each approved form of isolation; specify the manner in which isolation shall be imposed, supervised, terminated, and documented; expressly prohibit unapproved forms of isolation; and require authorization from the Superintendent (or his/her designee) for isolation beyond three hours.
c. Prohibit use of isolation as an immediate punishment or as informal discipline, and, to the extent possible, use isolation only when less restrictive means of obtaining compliance with programming requirements or lawful orders have been properly, but unsuccessfully, attempted.
d. If isolation is used for discipline it must be appropriate for the youth, and the youth must receive a due process hearing prior to the imposition of said discipline.
e. Release youth from cool off promptly after they no longer pose a significant risk of danger to themselves or others, or no longer pose an immediate threat of elopement.
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77. Custodial Restraints Generally. DYS shall immediately develop policy and procedures that specify the manner in which restraints for control shall be imposed, supervised, terminated, and documented; expressly prohibit unapproved forms of restraints including as punishment; and specify that restraints are only used in those circumstances necessary for safety and security and, to the extent possible, when less restrictive means have been properly, but unsuccessfully, attempted. The policy shall require that staff use appropriate safeguards against asphyxia when applying restraints. Except as necessary for control after an event, the policy shall limit the use of handcuffs and leg restraints for point-to-point movement within facilities. A restraint device intended to immobilize should be an extraordinary event that is clearly defined, ordered by an appropriate supervisor with clinical oversight, of very limited duration, and thoroughly documented.
78. Restraints – Training. DYS shall require that staff be appropriately trained in restraint techniques before applying restraints, and that such training include the risks of asphyxia associated with prone restraint and prone containment.
79. Investigations of Serious Incidents. DYS shall develop and implement appropriate policies, procedures, and practices to ensure that appropriate investigations are conducted of all incidents of use of force with injuries requiring more than first aid treatment, staff-on-youth violence, of significant actual or significant attempted self harm, serious youth-on-staff violence, serious youth-onyouth violence, inappropriate staff relationships with youth, sexual misconduct between youth and abusive institutional practices or any other incident at the discretion of the Director. Investigations shall be conducted by persons who do not
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have direct or immediate indirect responsibility for the conduct being investigated. Sufficient staff shall be employed to provide adequate, prompt and thorough investigations. Said policies shall be completed by DYS within 60 days of the effective date of this Stipulation and shall be reviewed by class counsel and the Monitor. 80. Investigation Policy – Guidelines. Said investigation policies shall be developed in light of the following guidelines:
a. Except as otherwise directed by the Superintendent of a facility, all instances and allegations of use of force will be immediately and thoroughly investigated and documented as follows: i. when, where and under what circumstances the use of force occurred; ii. who participated in or witnessed any use of force or precursors to it; iii. what non-physical interventions were first attempted, by whom, for how long, with what effect; and iv. what force was used, by whom, for how long, with what effect; and
b. Each investigation shall be conducted by a person(s) who shall, at a minimum: i. not, due to their assignments and/or relationships with involved staff or youths, have or appear to have a conflict of interest in conducting the investigation;
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ii. for serious incidents and/or incidents wherein the subject is placed on administrative leave, at least 50% of the investigators must have successfully completed substantial law enforcement training in performing investigations and have experience in such investigations or comparable experience . All of the investigators must have also successfully completed training in administrative investigations by DYS that is developed in consultation with the plaintiffs and the Monitor;
iii. conduct private, in-person interviews of the youth(s) subjected to the use of force within 12 hours of the incident unless circumstances do not permit2;
iv. obtain a written statement from staff involved in the use of force before those staff leave the facility;
v. gather written statements from and, as warranted by the facts, conduct in-person recorded interviews of all witnesses to the incident;
vi. as appropriate, consider trends based on previous incidents or allegations of incidents involving any of the staff or youth who participated in or witnessed the use of force currently under review;
vii. prepare within fourteen business days of the incident, a written report that shall include, at a minimum:
2 Any delay in conducting the interview shall be documented and the reason for the delay thoroughly explained.
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1. a summary of relevant facts; 2. a summary of all steps taken during the investigation; 3. all witness statements; 4. summaries of interviews with tapes of the entire interviews; 5. proposed findings addressing, as applicable, whether:
the use of force or other conduct under investigation was objectively reasonable; and whether the force actually used or other conduct was appropriate and consistent with approved and trained techniques and the DYS use of force policy. c. The Superintendent shall adopt, modify and adopt, or reject each of the proposed findings and shall provide a written basis as to any finding that is not adopted without modification. Any extension of time required for completion of the investigation shall be approved in writing by the superintendent with an explanation and also approved by the Chief Inspector. 81. Backlog. DYS shall eliminate the backlog of investigations for serious incidents within 30 business days of the effective date of this Agreement. 82. Staffing. DYS, in consultation with class counsel and the Monitor, shall retain sufficient staff to accomplish investigative goals as required by this Agreement. 83. Abuse. All allegations of abuse shall be investigated in a timely and thorough manner. DYS represents that it will act in collaboration with local offices of Child Protective Services and with local law enforcement to implement policies and
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procedures regarding the steps to be taken and referrals to be made in the event of a report of alleged abuse of a youth, including steps that must be taken immediately upon the reporting of an allegation of abuse in order to preserve evidence and to protect youths pending an investigation of abuse. DYS represents that staff, including medical staff, has been trained in these policies and procedures. 84. Quality Assurance – Investigations. DYS shall ensure that as part of its facility and system-wide quality assurance program there will be a thorough analysis of use of force and other serious incidents and that DYS will comply with the terms of this Agreement.
VIII. MENTAL HEALTH CARE 85. General. DYS shall provide youth with a reasonably safe environment designed to
effect proper development and prevent psychological deterioration. DYS shall provide youth with a reasonable opportunity to accomplish the purpose of their confinement, including development of mental and emotional capacities for successful conduct and reentry into the community, such as the ability to take responsibility for the consequences of their actions; to respond appropriately to others (coping skills); to manage anger; and to develop a positive sense of accomplishment. 86. Mental Health – scope. DYS shall promote rehabilitation by developing, staffing, and implementing a comprehensive plan for a continuum-of-care mental health system that is attentive to the distinctive nature of adolescent cognitive, intellectual, emotional, social, and moral development. The system of care shall incorporate individualized, accurate, evidence-based or research-supported promising practices
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assessment and treatment of each youth. DYS shall ensure that adequate staff, space, and time are provided for the necessary planning, implementation, and oversight of mental health services. 87. Mental Health Policies and Procedures. DYS shall establish adequate policies and procedures that meet professional practice standards for every major area of mental health governance and service delivery. These guidelines for service delivery shall help to define what services should be provided to which youth. They must be explicitly articulated, internally consistent, and communicated or disseminated to ensure that clinical administration and staff have clear, current, working knowledge of existing policies and procedures, expectations, and consequences for non-compliance. DYS shall ensure that facility mental health programs (policies, procedures, protocols, staffing, space, etc.), including review and approval by the clinical mental health hierarchy through Central Office, shall promote informed decision-making and consistent staff expectations and accountability. Clinical supervisors of units and/or unit clinicians should be an integral stakeholder in this endeavor. 88. Mental Health Screening, Assessment, and Referral. DYS shall ensure that all youth have access to necessary inpatient psychiatric treatment at an appropriate facility. Within one year and subject to consultation with class counsel and the Monitor, DYS shall redesign and restructure mental health screening, assessment, and referral processes to ensure that all youth at risk of unmet and untreated mental health needs, including mental disability, behavioral, and substance abuse diagnoses, are identified and referred for appropriate, prompt, and effective care
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appropriate to their length of stay and consistent with professional judgment. DYS shall strive to prevent deterioration or exacerbation of mental health symptoms and to limit the behavioral manifestations of illnesses to potentially jeopardize youth and/or staff safety or to cause inappropriate punishment or needless isolation for behaviors caused by mental health issues. 89. Special Mental Health Units. Within one year of the effective date of this Stipulation, and subject to consultation with class counsel and the Monitor, DYS shall revise and clarify the screening, assessment, and referral protocols that govern the definition and operation of the Special Needs, Intensive, and Non-intensive Mental Health Units. 90. Mental Health Discharge. DYS shall ensure that criteria for discharge from the mental health caseload are clearly articulated. 91. Mental Health Resources and Staff Generally. DYS shall provide adequate trained personnel, space, and time to accomplish these goals, including the addition of clinicians; independently licensed, or appropriately supervised master’s prepared social workers; psychiatric nurses; and clerical staff. DYS shall ensure that JCOs are included as integral members of the team in order to provide a coordinated and consistent treatment response. 92. Mental Health Clinical Staff. Clinical staffing goals shall be 1 clinician for each 15 girls diagnosed as mentally ill and in need of treatment; 1 clinician for each 20 boys diagnosed as mentally ill and in need of treatment; and 1 clinician for each 20 mentally ill youth in the general population. Clinical staffing in any Intensive Mental Health Unit or residential mental health unit shall include at least 3 full-time
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mental health clinicians and a treatment team leader whose clinical profession and training shall be at the discretion of DYS. Deployment of clinical staff also is at the discretion of DYS but the delivery of service is subject to the review of the Monitor. Clinical Staffing has increased at the Intensive Mental Health Unit at Marion. DYS shall hire eight additional clinical staff in July, 2008. A staffing analysis shall be performed using the Ohio mental health and licensure criteria to determine the appropriate staffing considerations based on acuity. A staffing proposal will be completed by September 2008. 93. Staffing Additional Mental Health Units. The clinical staffing of additional, other type treatment units shall initially be at the discretion of DYS, whose plan for any such unit and its staffing shall be reviewed by Class Counsel and the Monitor. 94. Annual Review of Mental Health Staffing. Clinical staffing and the allocation of such staff shall be the subject of a detailed annual review and report by the Monitor who shall include any specific recommendations. 95. Occupational and Recreational Therapy. DYS shall ensure that the mental health program will provide occupational therapy (OT) and general activity therapy in adequate number and quality, especially those on units with more intensive mental health needs, to promote fine and gross motor activities, tasks which focus attention and have a high probability of success, and increased self-esteem and selfconfidence, for mentally ill youth who are frequently unable to participate in the more challenging schedule of general population. Occupational Therapists will work with the General Activity Therapist (GAT) to design programming. 96. Support Staff. DYS shall ensure that facilities have the clerical support essential
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for timely clinical communication, documentation, record-keeping, and monitoring, in order for Team members to provide appropriate program placement decisions and treatment response and to maximize the efficient use of valuable clinical time and expertise. 97. Mental Health for General Population. DYS shall provide youth who are not on the mental health caseload with frequent, regular access to social work or other staff trained in the detection of depression and anxiety disorders, in order to prevent under-diagnosis due to masking or failure to report symptoms by youth who fear looking weak. DYS shall ensure that youth with mental health needs that can be served in the general population receive adequate clinical staffing, mental health resources, and program support for the provision of clinical services. DYS shall ensure that these youth receive necessary ongoing monitoring, brief intervention, and/or continuing mental health services as needed. 98. Mental Health Treatment Design. DYS shall ensure that treatment planning is based on professional standards, to include problem identification, solutions tied to the problem, identification of treatment response and any current assets. DYS shall ensure that treatment programs are highly structured, consistent, intensive, and focused on changing specific behaviors and development of basic social skills. 99. Mental Health Treatment and Families. DYS acknowledges that family involvement generally enhances positive outcomes. DYS shall ensure that clinical staff, including Psychology, expand and strengthen contact with the families, family surrogates, or other significant adults in the lives of youth from reception through treatment and discharge planning. All opportunities to build such relationships
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should be exploited, including but not limited to attendance at Family Day, videoconferencing, and other forms of regular communication. Efforts to involve families should be required by policy and documented in the mental health record. 100. Mental Health Treatment and Girls. DYS shall ensure that a mental health clinician meets regularly with girls on the mental health caseload for individualized non-crisis oriented treatment, and with the non-mental health caseload youth, in order to promote the early detection and treatment of depression. DYS shall strive to provide appropriate treatment for adolescent female depression. 101. Discipline for Youth on Mental Health Caseload. Any youth who is currently on the mental health caseload or otherwise appears in need of assistance shall be provided with an advocate to assist such youth at any disciplinary hearing. The advocate, who shall have appropriate training for this role, shall be selected from a group of employees and not directly involved in the disciplinary event. The advocate shall make certain the youth charged understands the charges against him or her and the consequences of a guilty plea. Policy and procedures regarding discipline shall further elaborate on the disciplinary process and youth who are not fully able to comprehend or participate in such proceedings. The parties, in consultation with the Monitor shall agree to participate in a pilot program designed to determine any expansion of the role of the advocate that is deemed to be appropriate. This pilot program shall also help determine the scope of any appropriate training for the advocate. 102. Quality Assurance and Peer Review Procedures for Mental Health. DYS shall establish, disseminate, and monitor clear, detailed protocols for quality
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assurance and peer review in the provision of mental health care. DYS shall establish a plan to identify and use the most effective, evidence-based mental health and rehabilitative care treatment modalities, efficacy studies, bed utilization studies, and formulary policies as part of a well-researched, established, clearly outlined system of care. 103. Mental Health Staff Capacity and Performance. DYS shall ensure that data collection efforts such as the Performance-based Standards Project are expanded system-wide. DYS shall develop and implement methods for evaluating staffing competencies, performance indicators and outcome measures, and formal systems of care coordination (integrated treatment plans and meetings, records, logs, internal communications, family contacts). DYS shall require competence in specifying and assessing progress in individual treatment plans, in clinical performance, and in the integration of the disciplines (see Adequacy of Mental Health Records below) in order to increase quality improvement systems, clarity of clinical vision or purpose, ability to monitor performance, and the systematic capacity to identify and improve problems. 104. Mental Health Leadership. DYS will ensure that mental health leadership at the Central Office level adequately recognizes and responds to the serious and complex needs of the mentally ill youth in the DYS system; has a demonstrated knowledge of pertinent issues; and exercises strong leadership and commitment to advocate for critical mental health system needs and required change. 105. Training and Supervision of Mental Health Staff. DYS shall develop and implement its own core clinical training curriculum in order for all clinical staff to
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have requisite training and skills that are expected and supported by the agency. DYS shall provide adequate mental health in-service for clinicians as well as for all levels of staff to ensure their ability to respond effectively to the serious mental health needs that the DYS population presents. In-service opportunities must provide consistent messages, tied to clear expectations, including but not limited to newly articulated policies and protocols. For training to be effective, credible, and productive, it must be clearly coordinated, planned, and delivered. DYS shall provide clinical staff with system-wide, consistent clinical enhancement training. DYS shall provide outside training opportunities that will assist treatment professionals within DYS. DYS also shall continue and expand current opportunities for clinical staff to pursue additional clinical training of their own initiative and choosing and staff will be encouraged to utilize workforce development funds. 106. Mental Health Records and Team Coordination. DYS acknowledges that effective treatment of youth requires integrated treatment planning, communication, and documentation. DYS shall ensure that clinical staff develop specific individual treatment plans and goals for youth and assess progress toward these goals. Plans must include interventions that are strength-based, work toward specific individualized goals, and include families whenever possible in treatment planning and delivery. Progress notes will be in standardized (SOAP) format. DYS shall ensure that record-keeping is unified, accurate, and supportive of each youth’s integrated treatment plan and a coordinated and purposeful treatment response. DYS shall ensure that administration and staff clearly understand the nature of
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treatment plans in general and coordinated treatment plans in particular, in order to promote integrated and effective planning and treatment. DYS shall ensure that records from all programming are integrated as appropriate and support the clinical treatment plan. 107. Suicide. In the development of policy and procedures for suicide prevention, DYS shall emphasize the need to distinguish a suicide gesture from an authentic attempt. DYS shall address the use of suicide threats as a means to seek protection and determine if specific policies and procedures are needed regarding protective custody. Youth on Suicide Watch shall be seen daily by a psychologist during the week to provide appropriate intervention and support to assist the youth in developing the coping skills necessary to be removed from supervision and manage suicidal ideation. The policy and procedures will address the physical characteristics of rooms or areas used for suicide watch, the various levels of intensity for suicide watch, appropriate duration of suicide watch, activities, educational opportunities, and similar matters incorporated by national standards. 108. Mental Health Care Facilities/Physical Plant. DYS shall eliminate the open two-tier design and vertical rail bars of the Circleville Non-Intensive Mental Health Unit.3 Within 60 days of the effective date of this Stipulation, DYS shall prepare a plan for the appropriate configuration, outfitting and use of any and all safety rooms (including rubber rooms) which shall be subject to review by Class Counsel and the Monitor.
3 DYS should encase the railings so there are no spaces and no ability to leap over the second floor railing. DYS also should remove or repair loose and broken floor tiles, which can pose a potential risk for being used for cutting self or used as a weapon.
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XI. MEDICAL CARE A. General Principles 109. DYS acknowledges that every youth in the custody of DYS is entitled to receive treatment for their medical problems; that consequences of medical failures for youth can be more serious and more long-lasting than for adults; and that such youth are entitled to a broad array of preventive care and education. 110. DYS shall ensure, subject to approval by the Monitor, that medical services provided to youth meet the specific needs of adolescents as defined by nationally accepted practice standards. 111. Within 60 days of the effective date of the Stipulation and subject to review by class counsel and review and approval by the Monitor, DYS shall develop and implement chronic care clinics for youth with chronic diseases. DYS shall monitor these clinics to ensure compliance with nationally established guidelines for adolescent care.
B. Leadership 112. DYS shall ensure that the Central Office provides strong leadership and oversight
on medical issues, with an emphasis on continuity of care, open communication, and collaboration. DYS shall ensure that the Medical Director has recognized authority to design and promulgate policies that govern the practice of medicine in DYS facilities. 113. DYS shall clearly define the collaborative relationship between the Medical Director and the Director of Nursing. 114. The Medical Director and Director of Nursing should drive policy and procedure
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development and review for all medical matters and submit that material for Departmental approval through the Deputy Director for Treatment and Rehabilitation Services. 115. DYS shall provide the time, staff, training, and resources for the Medical Director to conduct peer review, quality assurance, policy development, and other activities associated with medical leadership and administration. DYS shall establish and implement a monitoring system to ensure that the Medical Director performs these activities in a manner sufficient to ensure that medical practice standards are being met.
C. Medical Assessments 116. All references to the development of policy, procedures and protocols contained
in the section on Medical Care shall be subject to review by class counsel and the Monitor. Unless expressly stated otherwise, the policy, procedures and protocols in this section shall be developed and subject to review within 180 days from the effective date of this Stipulation. 117. DYS shall develop policy and procedures that shall ensure that all medical assessments, from intake through discharge planning, are monitored for quality and accuracy and connect the youth to each receiving facility and to his home community on discharge. Such policy and procedures shall ensure that physicians have a role in designing initial health care appraisals so that critical areas of adolescent development and health history are adequately addressed, along with family history and personal history of medical and mental health. 118. DYS shall immediately design, implement, and monitor protocols requiring
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documentation of available information and connection of that information to the youth’s current health status. DYS shall revise policies on Health Care Appraisal and Examination (403.11) and Special Needs Health program (403.15 III and IV) as well as the Transfer Health Appraisal (403.12) to ensure that clinical impressions are documented and that health care providers integrate information that is available in order to provide timely and adequate care. 119. DYS shall develop protocols for quality improvement and to monitor the quality, accuracy, and timeliness of initial health appraisals, with the awareness that delays or inaccuracies may inhibit youth from enrolling in the educational program and in receiving necessary medical and mental health treatment. 120. DYS policy and procedures shall ensure that initial health care screens may be completed by an LPN but health appraisals are completed by RNs with an area for the physician’s signature and comments. DYS shall strive to ensure there is correlation of information documented to confirm the physician’s impressions from the record review. 121. DYS policy and procedures will ensure that the history provided by families is correlated with initial or subsequent medical and mental health assessments completed at parent institutions. DYS shall ensure that the initial appraisal includes assessments of physical and sexual development based on age and the youth’s current nutritional status. Hearing and vision screens are to be completed as parts of the initial physical examination process and recorded in the medical file. 122. DYS policy and procedures will ensure the timely and accurate communication of medical information during any transfer process. DYS shall ensure that physicians’
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progress notes document the review of available information and the physician’s conclusions based on that information, including but not limited to health status; immunization status; significant youth or family history of chronic disease or mental health issues; identified medical problems; problem status; response to treatment; and timeframe for reassessment and examination. Determining that an acute or chronic disease is not present should also be consistently documented. 123. Policy and procedures will ensure that the medical transfer summary must be completed by the sending facility and accompany all youth at the time of transfer. These must include: a summary of findings, a summary of care and treatment provided with the youth’s response, a list of current medications and compliance and a list of specialty appointments completed or pending. The receiving facility RN shall document a review of the materials received on the transfer intake screening form and correlate that information with the youth’s health status at the time of the initial examination by the physician. 124. DYS policy and procedures will ensure that there are clear guidelines for clinical assessment and physician referral for serious injuries, whether caused by youthful exuberance, staff or youth assaults or athletic activities. Youth injury assessments must include a description of the activity or event that led to the nurse’s examination as well as the description of injuries and the action taken. 125. DYS policy and procedures should routinely monitor qualitative reviews of the medical information collected and used, and take corrective action, including policy and procedure review, education, and training, where assessments are incomplete, accurate information is not relayed in a timely manner, or follow-up is not
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documented. 126. DYS policy and procedures will provide for additional attention to the special
needs of female adolescents in all aspects of programming and care. Developmental milestones for physical and emotional development should be identified and used in the provision of care and education.
D. Medication 127. DYS policy and procedures will ensure that medication administration, including
the prescription, distribution, and storage of medication, meets current national nursing, pharmacological, and physician standards; that medications prepared in advance shall be administered by the nurse who prepared them; and that medications shall be recorded at the time they are administered. Blank spaces on the medication administration records (“MARs”) shall be reported as medication errors as required by DYS policy. 128. DYS policy and procedures will ensure that there is an assessment of the impact of any medication error, regardless of the nature of the error (inter alia, wrong medication, medication administered to the wrong person, effects of a double dose due to recording errors, or not giving the medication because it was not available). 129. Medications may be ordered on an as needed basis, e.g., to deal with recurring pain or asthma. The physician's order may specify the number of hours that must lapse between doses ("example: one dose every three to four hours") or the maximum number of doses that can be administered within a 24- hour period (example: a maximum of eight doses). DYS shall continue to make this type of medication available upon request at breakfast, lunch and dinner, which are regular
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medication times. These medications must be available by request and consistent with the assessed need for them 24 hours per day, as ordered. 130. DYS policy and procedures will require the routine monitoring of pharmacy services, especially for those facilities contracting with Ohio Department of Mental Health, for timeliness and accuracy of deliveries. Joint monitoring of the pharmacy contract and its provisions should be conducted not less than quarterly with facility staff and the pharmacy provider.
E. Laboratory Services 131. DYS policy and procedures will require the monitoring, timely completion, and
accurate reporting of laboratory services. Progress notes shall address variances from the laboratory norms and the impact, if any, on the care to be provided.
F. Infection Control 132. DYS policy and procedures will ensure that infection control is routinely
addressed at the facility level, and will provide for infection control through monitoring and reporting of infectious diseases, including sexually transmitted diseases and Methicillin Resistant Staphylococcus (MRSA) and Methicillin Sensitive Staphylococcus infections per Ohio Department of Health Guidelines.
G. Physical Plant & Equipment 133. DYS shall ensure that adequate space is provided for the storage of medications at
all facilities and allow for adequate hand washing and infection control practices for the preparation and administration of medications. 134. DYS shall regularly review the status and use of medical equipment so that adequate planning and timelines for replacement can be established.
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H. Documentation 135. DYS shall ensure that medical records are accessible to all treatment providers,
complete, accurate, and follow youth from intake through placement and discharge/reentry. The requisite medical and mental health individual plans are to be available for the Multidisciplinary Treatment Team. DYS shall revise its policy and procedures to make each youth’s medical record a complete document that is an effective means of communication between shifts and disciplines. 136. The medical record shall be a chronological and complete record or ‘story’ including elements of history (medical, psychiatric, developmental), complaints, problems or needs, assessments and diagnosis and document the treatment and response or outcome of care provided to the youth. 137. Problem lists should be located in the same, readily apparent area in each file and they should be current and list acute and chronic problems. The youth’s current status with regard to chronic disease should be clearly identified on the problem list and in the plan of care. Issues that have been treated and resolved should be so identified. 138. Medical records shall be reviewed quantitatively and qualitatively to ensure that information is complete, accurate, and available to all members of the treatment team. Physician notes must include the course of care, the problem, the treatment, and the outcome of each treatment provided. Notes should address the history and testing used to reach a diagnosis as well as a description of findings upon physical examination. The degree of control should be identified for chronic diseases and the level of acuity should be clearly stated for new diseases.
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139. DYS shall ensure that vital signs that are significantly above or below the normal range for adolescents are assessed for a defined period of time with guidelines for the frequency of reporting results/findings to the physician. The physician’s review of these results should identify the relationship to an existing or new problem or disease.
140. An acute episode of illness, a specialty appointment or hospitalization requires a face-to-face appointment with the physician or nurse as appropriate, and the youth to present and discuss the results of any consult and the plan of care. Documentation of this meeting should be available in the progress notes as well as the individual plan of care that may be implemented. Symptoms reported by youth should be verbatim and without interpretation. Interval histories and contacts with medical services need to be made available for physicians at the time of appointments. This is especially important for youth with chronic diseases. Outside Dental and Oral Surgery Consultations should follow-up with the referring Dentist. I. Quality Improvement
141. DYS shall implement a systematic, data-driven quality improvement program adapted to an adolescent population, including but not limited to quality assessment and monitoring for facility clinical and program services. DYS shall conduct needs assessments of the population to ensure that programming matches those needs. DYS will monitor outcome measures for medical and mental health treatment. DYS shall ensure that all quality assessments are supported by documentation in youth medical files. The provision of care should be monitored and assessed on a regular basis. The program should include peer review at regular intervals and qualitative
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and quantitative medical record reviews at a minimum. J. Health Education
142. DYS, in cooperation with the Monitor, shall develop, implement, and monitor a coherent, system-wide, integrated protocol for preventive care, including a health education program.
143. DYS shall ensure that health care staff are prepared to answer youths’ questions truthfully, explaining the reasons for necessary procedures or medications, offering alternatives if they exist and are appropriate, and documenting the key points presented and the youth’s comprehension and ability to apply the information to his/her care. DYS shall encourage inclusion of the health educational program in the Science and Health classes.
144. DYS shall ensure that informed consent forms and notification processes for youth and family are developed specifically for adolescents with pictures and/or uncomplicated terminology that can be understood and used by youth. DYS should consider providing classes or other forms of education on the purpose, use, risks and benefits of medication, with documentation of participants, the information presented, and the individual’s educational reading level.
145. DYS shall prepare a protocol that will ensure that family, family surrogates, or other significant adults are engaged in care and receive timely notification of medications and other medical services requiring more than first-aid treatment and that these notification processes are fully and timely documented in the youth’s medical record. Such protocol will be reviewed by class counsel and the Monitor.
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K. Nutrition 146. DYS shall ensure that the nutrition program is regularly assessed to ensure
compliance with appropriate standards including but not limited to the National School Lunch Program and the American Diabetes Association to determine the efficacy of the program for individual youth, and to ensure that pregnancy diets are adequate. Dietary and physical activity behaviors should be monitored and designed to engage youth in healthy lifestyle choices that can transfer to a community setting.
L. Staffing 147. DYS shall ensure adequate staffing allocations for nurses, physicians, and related
support staff; medical records technicians; phlebotomists; and secretarial support for the current number of youth housed in DYS facilities requiring a safe environment, education, and treatment for medical and mental health issues. Staffing levels will be monitored and staff will be allocated to provide youth with timely access to the appropriate clinical staff in order to receive a diagnosis and treatment in a facility or designated area designed for the type and level of care required. 148. DYS shall include a relief factor for 24/7 nursing positions that is consistent with DYS benefit/leave policies. DYS should continue to make every attempt to minimize mandated overtime for medical staff. Given the priority of the educational program during daytime hours, DYS should consider non-traditional schedules for clinical staff. 149. DYS policy and procedures will clearly define the roles and responsibilities of
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medical care providers and support staff, with the goal of providing a safe, healthy environment. DYS P&P shall clearly define zero tolerance for aggression from youth and staff alike. DYS shall train staff members and encourage youth to lead and provide behavioral values in the course of daily tasks. DYS shall require rules that are simple, clear, and consistently and fairly enforced but not designed to delay or remove access to care. 150. DYS shall evaluate the competitiveness of current levels of pay and benefits with the private sector, and consider adjustments in order to fill existing vacancies in facilities with competent staff. DYS also shall reconsider the current organizational structure to encourage creative thinking and the sharing of effective ideas or decision-making that benefit youth. Encouraging the growth of professional staff and providing evidence that creative thought and approaches are valued should also contribute to successful recruitment and retention of competent and committed staff. The evaluation and reconsideration noted in this paragraph shall be completed within 180 days of the effective date of this Stipulation, reviewed by class counsel and the Monitor. 151. DYS shall ensure that health care providers are credentialed and have experience consistent with the population served, e.g., family practice physicians. 152. DYS shall ensure that competency of all staff is regularly assessed and consistent with program expectations as described in position descriptions, and that peer review is completed for each professional employee on a regular basis. 153. DYS shall improve health care staffing according to population needs. Increased staffing should be considered as necessary to meet security needs. DYS may
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include nurse practitioners as physician extenders. XII. DENTAL CARE A. General Principles
154. All youth in the custody of DYS have a right to adequate dental care that shall include a program of preventive care and cleaning, oral health education, and immediate access to care for urgent or painful conditions.
155. DYS shall ensure that the policy and procedures governing the level and quality of dental care for youth meet or exceed national standards.
156. DYS shall ensure compliance with the following general standards of dental care: a. All aspects of the standard are addressed by written policy and defined procedures. b. Oral screening by the dentist or qualified health care professionals trained by the dentist is performed within 7 days of admission to the correctional system. c. Instruction in oral hygiene and preventive oral education are given within 14 days of admission. d. An oral examination is performed by a dentist within 60 days of admission. e. Oral treatment, not limited to extractions, is provided according to a treatment plan based upon a system of established priorities for care. f. Radiographs are appropriately used in the development of the treatment plan.
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g. Consultation through referral to oral health care specialists is available as needed.
h. All youth have access to the preventive benefits of fluorides in a form determined by the dentist to be appropriate for the needs of the individual.
i. Where oral care is provided on site, contemporary infection control procedures are followed.
j. Extractions are performed in a manner consistent with community standards of care and adhering to the American Dental Association’s (ADA) clinical guidelines.
B. Policy & Procedures, Protocols, Other Written Dental Procedures 157. Unless otherwise specifically provided, in every Section and sub-section that
follows where there is to be developed a policy, procedure, protocol, or other procedure, DYS shall take the initiative in the drafting, consulting with the Monitor as DYS deems it desirable, and shall then submit the draft for review by class counsel and the Monitor.
C. Access to Care 158. Orientation and Supplies: DYS shall develop a policy promoting youth access
to acute and routine dental treatment. Dental care providers will work together to develop a system for patient education, and DYS shall provide specific, detailed, verbal and written information upon intake to ensure that all youth entering DYS facilities understand their entitlement to, and how to access, routine and emergency dental care. DYS shall ensure that all youth have ADA-approved dental care
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supplies, including a toothbrush, toothpaste, and dental floss, throughout their stay in DYS facilities. 159. Urgent Care: Youth with urgent dental conditions must be able to access care within 24 hours. DYS shall provide training for nurses in triaging and stabilizing dental pain. Nurses should consistently document the assessment of patients requesting dental care, and the dentist and nurses should document emergency or essential / urgent dental care visits using the SOAP format. 160. Appointments: DYS shall strive to eliminate delays in dental treatment at all facilities, and to ensure that youth are available for treatment during all the hours the dentists are present in a DYS facility. DYS shall ensure that every facility keeps daily records of the number of dental patients seen and the number and type of procedures performed. Any inability to have a juvenile transported to the dental clinic should be documented to ensure that youth arrive for their dental appointments consistently and on time.
D. Quality of Care 161. Routine Care. Every youth is eligible for a routine dental examination, cleaning,
and continuing oral health education at the end of each twelve (12)-month period of custody. Youth orientation will specify and clarify this opportunity indicating clearly and precisely how and when appointments for routine care shall be made through verbal instruction and a written description in the Orientation Handbook. 162. DYS Dental Policy and Procedures: DYS shall rewrite dental policy 403.13 to ensure full compliance with governing standards and to create and update care provision instructions, including but not limited to procedures for screening and
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examination; treatment planning; categories of care; emergent, urgent and routine dental care; prevention and dental prophylaxis; fluoride treatments, and caries control; and infection control. 163. Screenings and Examinations: DYS shall ensure full compliance with DYS Dental Screening Examination Policy 403.13, including documentation of the screening and examination on the Dental Record (DYS DMH-0059). Documentation will include identified elements of the screening and examination, including prioritization of levels, oral health condition, and diagnostic bite wing xrays. Parent institution will develop an individualized treatment plan for each youth. 164. Primary Prevention: DYS may provide sealant placement on pits and fissures of non-carious permanent teeth if indicated. DYS shall provide topical fluoride treatment as recommended by the American Academy of Pediatric Dentistry (AADP) as part of primary prevention of dental caries during the teenage years through early adulthood. 165. Patient Education: DYS shall develop a meaningful oral hygiene education program structured to train youth being mindful of the youth’s educational reading level and/or other learning deficits. 166. Dental Caries Stabilization: DYS shall ensure that a system is developed to prioritize dental caries that have progressed beyond demineralization into categories consistent with DYS 403.13 and AAPD guidelines. Caries placed in high priority categories will be stabilized at or prior to the annual recall examination and dental prophylaxis, and a tracking system will be developed by the Health Services
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Administrator and the dentist to ensure the annual follow up dental examination is completed. 167. Removable Partial Dentures, Crowns, and Fixed Partial Dentures: DYS shall ensure that removable partial dentures continue to be provided to the patients for whom the dentist determines they are needed. Carious lesions will be restored and the supporting structures stabilized prior to fabrication of removable partial dentures. Mandibular acrylic partial dentures will no longer be fabricated without rests, in order to avoid damage to tissues and abutment teeth. 168. Oral Surgery: DYS shall ensure that no dental surgical procedure, including extractions, is performed without adequate dental radiographs and no extensive dental surgical procedure is performed in the absence of a dental assistant (which may be a nurse). 169. Availability of Specialists: DYS shall continue to ensure that treatment by dental specialists is available when needed. 170. Special Needs Patients: DYS shall monitor dental treatment of special needs patients, including those with mental health and mental disability issues. 171. Quality Management: DYS shall develop, implement, and monitor a clinicallyoriented quality assurance and peer review system with thresholds by which deficiencies in procedure, quality, or appropriateness can be corrected. 172. Dental Record Documentation: DYS shall ensure that the medical information available to the dentist during treatment is adequate to identify conditions where precautions should be taken, or physician consultations are needed. 173. DYS shall revise policy and ensure compliance with the provision of a detailed
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dental treatment plan for each youth, which documents and prioritizes dental levels of care and addresses components such as examination, prophylaxis and oral hygiene education, and diagnostic radiographs. The severity of dental caries should be indicated so the parent institution can more effectively triage teeth that are a priority for stabilization to prevent tooth loss. 174. DYS shall ensure compliance with Policy 403.05.01 and the use of the SOAP format in filling out the dental record progress notes, particularly in non-routine appointments, i.e., those generated by a complaint from youth, in order to fully document dental care and to promote the pursuit of a logical process in diagnosis and treatment.
E. Physical Resources 175. Equipment Condition: DYS shall ensure appropriate space, equipment and
supplies are available to provide safe dental care.
F. Human Resources 176. Dental Clinic Staffing: DYS shall provide an adequate number of dentists,
dental hygienists or assistants for each facility dentist to perform the ancillary work of sterilization, record keeping, appointments, and tracking of patients; to ensure that dentists perform duties commensurate with their professional competence; to ensure that infection controls are not compromised; and to prevent delays in providing care, including the removal of infected teeth or other oral surgery procedures. The number of licensed dentists, hygienists and dental assistants shall be the subject of further study by DYS, class counsel and the Monitor leading to an agreement within 90 days of the effective date of this Stipulation.
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177. Licensure and Required Certificates: DYS shall ensure that all clinics comply with the Ohio Administrative Code requirement that licensure of dentists and hygienists must be available for review.
178. Quality of Providers: DYS shall ensure that DYS dental care providers are adequate in number and quality. a. Dentists: DYS shall adopt policy and procedures to ensure that all dentists provide adequate patient treatment, follow up, annual examinations, dental prophylaxis; proper care, cleaning, and sterilization of instruments; and documentation of dental care, including prioritization of dental care issues and documentation on the category of severity of dental caries. b. Nurses: DYS shall adopt policy and procedures to ensure that nurses are trained to recognize dental problems on intake screening and nurse health call triage, and that adequate training is provided and documented to justify the granting of any dental privileges to any nurse. c. Dental Assistants: DYS shall provide dental assistants or a nurse to maximize the safe, efficient use of dental care resources. d. Dental Hygienists: DYS shall provide dental hygienists in adequate numbers to improve the quality of the dental cleanings, fluoride treatments, and oral hygiene instruction/education, with an initial staffing level of eight dental hygienist hours per week per facility in addition to the current dentist hours. DYS shall monitor this addition of staff for effectiveness.
179. Infection Control: DYS shall adopt policy and procedures to ensure full
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compliance with infection control procedures, including those mandated by the CDC Bloodborne Pathogens Standard. DYS shall ensure that there is adequate biohazard labeling in all locations, including on ultrasonic cleaners and day light loaders. DYS shall monitor compliance with all sterilization and infection control procedures and take steps to ensure compliance with applicable policies and regulations.
XIII. EDUCATION A. Leadership and Organizational Structure 180. DYS acknowledges the importance of education to the students and to the safety and security of the facilities’ staff and students. 181. DYS shall adopt an inclusive management model, based on a protocol that seeks input from school staff whenever possible. DYS shall initiate structured, ongoing efforts to improve communication between facility superintendents, program deputies and administrators of the DYS Bureau of Education (“the Bureau”). 182. DYS shall ensure that JCOs are available to curtail violence and maintain order in the schools. Consistent staffing and a consistent management approach will be established within each school to achieve a positive atmosphere that is conducive to learning. JCOs and education staff shall receive training in classroom management techniques, including clarification of the appropriate roles and allocation of responsibility between education staff and JCOs. 183. DYS shall maintain a system to comply with statutory and regulatory requirements for the school superintendent to supervise educational service delivery and evaluate principals and for the assignment of school employees, while ensuring
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that facility administrators retain their ownership interest in the schools and share responsibility for the performance of the principals and the schools. 184. Within 60 days of the effective date of this Stipulation, and subject to consultation with class counsel and the Monitor. DYS shall develop a plan to ensure that the instructional leadership duties of educational staff are not hampered by competing institutional responsibilities. In establishing the plan DYS shall consider limiting educational staff responsibilities for Interdisciplinary Committee hearings to those initiated by school staff; limiting their investigative responsibilities to incidents involving school staff; and eliminating their administrative duty officer responsibilities. The plan shall also ensure that the assignment of institutional duties to principals or assistant principals not detract from instructional leadership.
B. Physical Plant 185. DYS shall review current facility usage in light of the classification system to
maximize usage of existing school space, and shall take all necessary action to ensure sufficient space to appropriately meet the educational needs of its students. 186. DYS shall review all of its school facilities to ensure that adequate safety features are in place. Cameras should be installed to record images in common areas and classrooms in those facilities where assaults occur. Where individual alert systems such as radios are used, DYS shall ensure an adequate supply of such devices for school staff, including contract service providers. 187. DYS shall ensure that furniture purchased for educational purposes is appropriate in relation to safety and classroom size. 188. Site-specific Physical Plant Requirements: DYS shall complete necessary
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repairs at Luther E. Ball High School at Cuyahoga Hills Juvenile Correctional Facility (“Cuyahoga”), including the bathrooms, ceiling tiles, gym doors and the hard-wired security system. DYS shall ensure that there is sufficient classroom space at Cuyahoga. DYS shall ensure that a functioning air conditioning and heating system is installed at Tecumseh High School at Ohio River Valley Juvenile Correctional Facility (“ORV”).
C. Full School Day & Staffing 189. DYS, in consultation with the Ohio Department of Education, shall provide all
youth with a full school day as defined by Ohio law, including but not limited to Ohio Administrative Code (“OAC”) 3301-35-06(E-F), which requires at least 5.5 hours of scheduled classes, supervised activities, or approved educational options excluding the lunch period and interscholastic athletics. Within 60 days of the effective date of this agreement DYS shall establish a plan to adapt any education that is provided to reception center youth in a manner that is appropriate under federal and state law. 190. As needed to meet the full day school, schools shall endeavor to fill every available school room with a class to allow more scheduling options and additional electives. Schools should increase scheduling flexibility by considering the addition of evening classes, and the use of available additional space such as physical education facilities, to ensure that no student sits on the unit until a seat is available in school. 191. DYS shall increase efforts to recruit and retain competent DYS school district employees. DYS shall promote cultural and ethnic diversity among school staff and
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administrators by enhancing efforts at minority recruiting. 192. DYS shall establish a centralized hiring process for education staff by assigning
retention and recruitment responsibilities to a Bureau administrator while allowing for facility participation and input. The hiring process shall effectuate the statutory responsibility of the superintendent for the assignment of teachers and school staff. The hiring process shall reflect strategic planning for the allocation of manpower, including consideration of the relative strength of the teacher preparation programs from which the applicants come, and the need for compliance with requirements for certification, for placement of highly qualified teachers (“HQT”), and for procedures and outcomes defined by state and federal statutes and regulations, including requirements of the No Child Left Behind Act of 2001 (“NCLB”), 20 U.S.C. § 6301 et seq., and the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. 193. DYS should consider giving academic credit, including elective credit, for certain group programs, such as the three month course for youth incarcerated due to sex offenses, which can be aligned with class content requirements and placement of an appropriately credentialed teacher with the social workers who currently conduct the group treatment. 194. DYS shall analyze the pattern of vacancies and teacher absences at each facility over a period of time, and staff according to these data. DYS shall maintain acceptable staffing ratios as required by state or federal law for regular and special education students. Within 60 days of the effective date of this Stipulation a plan for meeting the education staffing needs shall be developed by DYS and reviewed
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by class counsel and the Monitor. 195. DYS shall increase the budget for substitute teachers and provide for more
substitutes at the larger schools. DYS shall also hire and train permanent substitutes. These substitutes shall include teachers who can move between schools that are relatively close to each other. During the rare times when these teachers are not required to staff a classroom, they should be assigned other tasks, including serving as collaborating teachers in other classrooms. 196. DYS officials must be involved in facility decisions to create or discontinue specialty units. The ability of the school to provide educational services for these units should be a factor in determinations about creating the units. All youth in specialty units shall be provided the opportunity for education services as required by federal and state law. DYS must ensure that the individual education plans for youth who are identified as needing specially designed instruction are fully implemented in any specialty unit. 197. DYS shall maintain a system by which the facilities provide the Bureau with information regarding which students are in specialty units so that education services can follow the youth without interruption. 198. DYS should consider expanding the Table of Organization (“TO”) to include a highly qualified special education teacher for each specialty unit that contains students requiring highly restrictive educational placements, in order to provide each specialty unit with a self-contained special education classroom for students needing such a restrictive setting and to facilitate students moving to a less restrictive school setting as quickly as possible.
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199. DYS shall revise its policies to provide professional development until such time as the school district has achieved minimal compliance with state and federal education law.
200. DYS shall continue to require three weeks of pre-service training for teachers and appropriately adapt pre-service training for substitute teachers. DYS shall provide ongoing site-specific training for education staff in a manner that is flexible and minimizes disruption to schedules, including the use of training videotapes available during duty periods, delayed start times, and early releases. DYS also should consider allowing teachers to begin work and complete the training modules during school intercessions.
201. DYS shall provide professional development to guidance counselors, transition staff, and teachers working with transition and reentry issues on the legal implications of students’ juvenile records, in order to ensure that students receive accurate information about issues such as the collateral consequences of an arrest, crime, adjudication, or incarceration for employment, military, education, or housing opportunities.
202. DYS should consider the use of educational aides in selected classrooms. DYS shall continue to negotiate for contract clauses requiring teachers to sign yearly contracts with the intent of decreasing the number of teachers who resign without notice in the middle of the school year. D. Instructional Practices & Discipline
203. DYS shall continue to improve communications between facility and school staff. Principals should invite the facility superintendent or designee to all faculty
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meetings. The facility superintendent should invite the principal or designee to facility staff briefings and to relevant leadership meetings. 204. DYS shall continue to increase cooperative efforts to reduce violence and its interference with students’ education. The Bureau and school administrators should increase the amount of Professional Development related to classroom management and differentiated instruction. 205. Principals and assistant principals shall intensify efforts to identify teachers who are ineffective classroom managers, and assist these teachers in developing goals and objectives to improve their classroom performance. Bureau and school administrators shall provide continuing education opportunities, mentorship and other resources to assist challenged teachers in progressing toward educational goals. 206. DYS will contract with an education consultant skilled in instructional practices and classroom management in juvenile correctional settings to improve classroom management techniques, and learning opportunities for youth in DYS. 207. DYS shall strive to increase compliance with the progressive discipline policy, such as Saturday school as a discipline step preceding exclusion from school. The Bureau should carefully monitor schools’ implementation of character education and other positive behavior management strategies to ensure that the schools’ efforts are directed toward creating a positive culture.
E. Educational Assessment, Guidance Counseling & Reentry 208. DYS shall strive to maximize the accuracy of educational assessments by
evaluating the scope and reliability of current assessment procedures and
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instruments. 209. DYS shall provide clerical support to guidance counselors to provide additional
time for counseling for youth on career and transition issues and postsecondary options. 210. DYS shall designate transition specialist(s) who will assist youth toward successful reentry into the community. The specialist(s) will explore bringing postsecondary options into the schools and promote system-wide expansion of opportunities for students to earn college credit and gain business and other skills through work with nearby colleges. The transition specialist(s) will also develop and maintain community linkages, and provide reentry follow-up in home schools for students. 211. DYS should continue to explore options for post-secondary education for students and allow selected students off facility grounds to explore postsecondary options through work opportunities, apprenticeships, college visits, and other communitybased activities as permitted by law. 212. DYS shall expand job training opportunities, systematic career assessment and counseling, and vocational education or career technology (“career tech”) classes for students. DYS should move career tech from finance to curriculum on the TO to facilitate an enhanced curricular focus on the program. DYS shall develop a cogent career-tech plan in order to maximize the availability of career tech options at each school and to ensure that eligible students have career tech choices. DYS should consider the availability of career tech offerings as one factor in assigning eligible youth to particular facilities.
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213. DYS should continue to negotiate with the Ohio Department of Education (“ODE”) to obtain waivers or explore alternate sources of funding to address conditions that impair student access to career tech programs in the DYS school system. The Bureau shall explore other funding opportunities to supplement the currently available career tech offerings, including funding for aptitude and career interest inventory counseling, even if adult education funding is used and must be supplemented from other monies.
214. DYS shall explore collaborative arrangements with public schools or adult education providers to provide satellite career tech programs on DYS school campuses, as well as new career tech options that tap into the service industry and non-traditional careers and possibilities for educational options such as independent study as a way for graduates or GED completers to meet one or two of the academic requirements for career tech. Staff should continuously seek collaboration with local businesses. DYS also shall explore options for transporting selected students to existing community career tech or adult education programs.
215. DYS should ensure that all students, including judicially released students, receive a certificate of hours completed and competencies mastered upon leaving career tech classes, in order to facilitate the transfer to career tech classes outside of DYS. The Bureau should make all certification tests immediately available to students eligible to take them.
216. Site-specific Career & Job Training Requirements: As part of the development of the education plan at the reception center, the Bureau should consider options to allow males to begin Administrative Office Technology (AOT) classes at William
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K. Willis High School, which they could continue at their next placement, and which would bolster enrollment in order to save the class from elimination. DYS shall promptly provide space for additional school programs at Tecumseh High School at Ohio River Valley Juvenile Correctional Facility. If there is no other way to provide all students with a full school day, DYS should build the new career tech building at Tecumseh.
F. Educational Programs & Support 217. DYS should ensure that all classroom space on units be wired for Customized
Student Learning System (CSLS). DYS shall provide sufficient professional development to enable teachers to implement CSLS successfully and to prevent the degradation of the system into high-tech worksheets unlikely to improve student achievement or behavior. 218. DYS shall provide school staff with internet access on request. DYS shall consider allowing student access to InfoOhio as a helpful resource for hometown newspapers and other items of interest. DYS shall provide all libraries with technology that is functional enough to permit the loading and use of current versions of software. 219. DYS shall continue to encourage speech therapists to work with students most at risk in reading. Contract time for speech therapists shall be increased if they are working with literacy in this underserved group. DYS shall provide access to computer software package and computer skills training designed to teach reading to students with pre-literacy skills. DYS shall reinstate the Title I reading teachers since Read 180 does not meet the needs of students most in need of reading
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services. 220. DYS shall develop a program within six months of the effective date of this
Agreement for delivering educational services to 12- and 13-year-old students in an age appropriate and developmentally appropriate manner.
G. Special Education 221. Provision of Special Education: The State shall, at all times, provide all youth
confined at the Facilities with adequate special education in compliance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. section 1400-1482 (West 2000 & Supp. 2006), and regulations promulgated thereunder, and this Agreement. 222. Oversight: The Bureau shall provide oversight of special education at the Facilities including:
a. Development and implementation of policies, procedural manuals, and training programs including: a quality assurance program for special education services, an adequate vocational education program for youth with disabilities, and a curriculum for special education instruction at the Facilities.
b. Ensuring that special education teachers are appropriately licensed to teach assigned courses and monitoring whether special education staffing and resources are sufficient to provide adequate special education services to youth at facilities and to ensure compliance with this Agreement.
223. Special Education upon Intake: The Bureau shall ensure that all students who qualify for special education services receive such services within a reasonable time
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following intake at the facilities. 224. Screening for Special Education Needs:
a. Consistent with federal regulations, the Bureau shall provide prompt and adequate screening of youth for special education needs and shall identify youth who are receiving special education in their home school districts or who may be eligible to receive special education services but have not been so identified in the past.
b. The Bureau shall ensure that those staff conducting the screening, assessment and evaluation processes are qualified to do so.
225. Individual Education Plans: a. DYS shall develop an IEP as defined in 34 C.F.R. section 300.320 for each youth who qualifies for an IEP. Following development of the IEP, DYS shall implement the IEP as soon as possible. As part of satisfying this requirement, DYS shall conduct required annual reviews of IEPs, adequately document the provision of special education services and comply with requirements regarding participation by the professional staff, parents, surrogate, and student in the IEP process. DYS shall ensure that IEP team meetings are held as necessary to develop, review or revise IEPs for qualified special education students in accordance with federal regulations. b. In developing or modifying the IEP, DYS shall ensure that: the IEP reflects the individualized educational needs of the youth and that services are provided accordingly; each IEP includes documentation of the team’s
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consideration of the youth’s need for related services and transition planning, and identifies the party responsible for providing training on how to monitor progress toward IEP goals and objectives; and teachers understand and use functional behavioral assessment and behavior intervention programs in IEP planning and implementation. 226. DYS shall ensure that fully functional Intervention Assistance Teams (“IATs”) are established system-wide, and will closely monitor IATs to ensure that they meet regularly for sufficient periods of time and engage in Child Find activities. 227. DYS officials shall provide continuous professional development (P.D.) in numerous areas, including but not limited to the following: a. P. D. on collaborative teaching is required for general and special education teachers, with follow-through to ensure that the precepts of effective collaboration are embedded. b. All teachers need P. D. on the writing of Individualized Education Plan (“IEP”) goals; on the variety of modifications, special education services and supplementary aids and services available to assist in implementing IEP goals; and on appropriate progress data collection strategies. Teachers, principals, and appropriate facility staff should receive training on the purposes of Functional Behavioral Assessments (FBAs) and Behavioral Intervention Plans (“BIPs”) and training on how to conduct FBAs and write and monitor BIPs, including monitoring strategies. c. School staff members should receive information on the range of related services available for special education students, with examples of those
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related services that might be particularly appropriate for DYS students. IEP team members also must be advised of their obligation to include all needed related services on students’ IEPs, without regard to whether the services are immediately available at the school. d. Facility administrators, psychologists, school administrators and IEP team members should receive training on change of placement requirements. e. IEP team members should receive P. D. on how to conduct manifestation determinations. Because most DYS students’ disabilities are inextricably intertwined with their behavior, the P. D. must provide guidance on the appropriate factors to consider in conducting manifestation determinations. f. IEP team members should receive structured P. D. on the importance of transition planning, integration of transition goals with reentry efforts, and the drafting of appropriate transition plans. g. DYS will require appropriate IEP team membership at IEP team meeting. The practice of case managers fully drafting IEPs should be abandoned and all IEP team members should collaboratively draft IEPs. 228. Guidance counselors shall be provided with electronic access to students’ full IEPs at all schools, rather than the IEPs-at-a-Glance, in order to facilitate appropriate scheduling. IEPs-at-a-Glance will be made electronically available to teachers requesting them. 229. DYS shall provide teachers with a form to assist in progress data monitoring, and teachers shall be required to monitor progress toward IEP goals. Monitoring of IEP
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goals, as well as effective co-teaching and familiarity with, and teaching to, IEP goals shall be considered in the evaluation process for all teachers. 230. DYS shall create a method of monitoring the implementation of transition goals for students. Transition plans should be included on the IEPs-at-a-Glance so that general education teachers are made aware of them. All DYS schools shall use appropriate placement procedures when moving students to more restrictive educational settings for school-related behavior. Students whose behavior is a manifestation of their disability shall not be excluded from their current school settings without following special education due process procedures. DYS officials shall monitor change of placement practices to ensure that appropriate procedures are being followed, and that IEP teams are not inappropriately excluding students for whom the school building is the least restrictive environment and are not using the process to exclude students whose behaviors are manifestations of their disabilities. 231. DYS shall ensure that school psychologists are available to support the learning needs of youth within the Buckeye United School District. This would include conducting behavior, aptitude and achievement evaluations for identification of student disabilities and the development of individualized education plans, Functional Behavior Assessments (FBA), and Behavior Intervention Plans.
XIV. GRIEVANCE SYSTEM AND YOUTH ADVOCATE 232. Generally. Within 90 days of the effective date of this Stipulation, DYS shall
implement a grievance system that has been reviewed by class counsel and the Monitor. The grievance system shall clearly state the purpose and scope of the
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grievance system. The grievance system shall be easily accessible to youth, shall ensure the right to meaningful assistance for youth in preparing and appealing grievances, and should empower those staff involved in the system to resolve issues at the local level as expeditiously as possible. Youth shall easily be able to obtain grievance forms without staff involvement. The objective of the grievance system shall be to achieve, among the youth who participate, a reasonable level of satisfaction and a sense of fair treatment. DYS shall establish grievance response deadlines, provide staffing sufficient to meet those deadlines, and enforce the response deadlines. DYS shall collect appropriate grievance data, which shall be analyzed on a regular basis to determine problem trends. The grievance system shall include written notification to the youth of the final resolution of the grievance. 233. Clinical Grievances. The grievance system shall include review by an appropriate clinician not involved in the care under review in those cases where the underlying grievance involves medical, mental health or dental clinical issues. 234. Grievance Orientation. A clear explanation of the grievance process shall be provided to each youth upon admission to the facilities during orientation, and to their parent(s) or guardian(s), and the youth's understanding of the process shall be at least verbally verified. 235. Youth Advocate. The position of youth advocate shall be reviewed and redefined and, if continued, shall operate consistently with the counsel access system, grievance system and unit management.
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XV. DISCIPLINE 236. Generally. Within 90 days of the effective date of this Stipulation, DYS shall
implement a discipline system that has been reviewed by class counsel and the Monitor. A staff member shall be offered to the youth to assist the youth in the hearing. The parties, in consultation with the Monitor shall agree to participate in a pilot program designed to determine any expansion to the role of the staff member at a disciplinary hearing that is deemed to be appropriate. This pilot program shall also help determine the scope of any appropriate training for the staff member and help determine whether the hearing should be recorded. Neutral fact finders shall preside at the hearing. 237. Disciplinary Dispositions. The disciplinary system shall include a range of consequences consistent with the treatment goals of the youth. Within 90 days of the effective date of the Agreement DYS in consultation with the plaintiffs and the Monitor will develop expanded disciplinary dispositions to be utilized with youth convicted of institutional violations. Disciplinary time shall not be added to the youth’s DYS stay or sentence by the hearing panel. As part of the effort to expand disciplinary dispositions the parties will determine whether to allow hearing panels to make a recommendation on whether disciplinary time should be added to a youth’s DYS stay. This shall be done in conjunction with the plan for reforming release. Isolation as a disciplinary measure shall only be utilized in accordance with the plan to be developed pursuant to paragraph 76. 238. Discipline of Youth on Mental Health Caseload. When a youth is on the mental health caseload, the Institutional Disciplinary Committee (IDC) Capacity
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Review form shall be used to determine hearing capacity, i.e., whether the youth understands the charges, is able to assist an advocate, and understands the potential consequences of a finding of guilt. The record of the proceeding shall include any facts as to capacity and awareness of consequences. The treatment team should carefully consider the negative consequences of any potential disposition, and suggest a disposition when possible consistent with the treatment plan. When a youth begins to deteriorate during a hearing, the hearing officer shall suspend the hearing, noting the reason why, and indicating when it might be continued (i.e when the appropriate clinician determines that the youth is sufficiently stable to proceed). The hearing will be recorded. The record should reflect the extent to which the youth’s illness or condition contributed to the violation that is the subject of the hearing in order to put the behavior in context.
XVI. DOCUMENTATION AND DATA ACCESS 239. Generally. Within 180 days of the effective date of this Stipulation, DYS shall
implement a documentation and data access system that has been reviewed by class counsel and the Monitor. DYS shall develop and implement policies, procedures, and practices setting forth clear standards regarding the content, integration, and timeliness of progress notes, transfer notes, school progress notes, discipline, discharge notes, and other records, including, but not limited to, an expectation that such records include meaningful, accurate, and coherent assessments of the individual's progress relating to treatment plans, goals and objectives, and that clinically relevant information remains readily accessible. 240. Progress Notes: The documentation policy shall require that all qualified health
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professionals create and use progress notes to document, on a regular basis, interactions and each assessment of youth with mental/behavioral health or substance abuse needs. In particular, progress notes shall:
a. In the assessment, address the efficacy of interventions, currently presenting problems, and the available options to address those problems; and
b. Provide thorough documentation of all crisis interventions. 241. Accessibility of Relevant Information: DYS shall ensure that youth records are
organized in a manner providing treatment teams prompt access to relevant, complete, and accurate documentation regarding the youth’s status.
XVII. MONITORING 242. Fred Cohen is hereby appointed Monitor. He will be assisted by subject matter
experts in the areas of mental health, use of force/investigation, medical, education, and rehabilitation programming. The Monitor shall appoint specific persons to serve as subject matter experts no later than the date of the fairness hearing. The parties must agree to the appointment of any person to these positions. In addition to the subject matter experts described above, the Core Monitoring Team shall initially include Shay Bilchik*. The Monitor may retain additional expert consultants for narrowly construed purposes in such areas as dental care, the structuring and implementation of community-based programs, and such additional areas as the Monitor in consultation with the parties deems necessary.
* Mr. Bilchik shall deal primarily with assisting the parties in the transition to a more regional and community-based juvenile system.
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243. The Defendants agree to pay for all costs associated with all phases of the monitoring process as described herein.
244. The Monitor agrees to submit to counsel for review the curriculum vitae of any person proposed and for any person to be retained as an expert consultant. The Monitor shall seek the advice and consultation of counsel for the parties prior to the retention of such substitutes or consultants.
245. Should the Defendants at any time during the life of this Stipulation deny any request by the Monitor relating to the budget or staff required to perform the monitoring duties, the Defendants shall notify Plaintiffs’ counsel in writing of such denial and provide a brief written explanation for the denial. In the event that counsel cannot expeditiously resolve any dispute in this area the Monitor may then ask the Court to resolve such dispute by any process deemed appropriate by the Court.
246. The Monitor, members of the Monitoring Team, expert consultants, and staff, full-or part-time, who are retained hereunder in connection with the monitoring function shall contract for their services directly with DYS and shall in all relevant respects be governed by existing DYS rules and regulations regarding such employment; and especially relating to documentation, compensation, and expenses.
247. The general goal of such monitoring and oversight shall be to promote and assist the parties in achieving compliance rather simply find noncompliance. The Monitor is a coach and partner in achieving success. The Monitor must also report
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on the compliance of the terms of this Stipulation. Monitoring principles shall include:
a. The reporting and on-site aspects of the monitoring shall be more intensive at the outset and likely decrease as compliance is neared and achieved;
b. Monitoring shall consist of a combination of empirical data, written reports from the Defendants, on-site inspections, oral and written reports from the Monitor, and appropriate consultation with the parties in aid of compliance;
c. The Monitor’s role shall include the gathering of appropriate data and statistics and on-site inspections as well as the general duty of assuring that required policy and procedures are prepared in a timely fashion and meet the objectives of this Stipulation; and where disputes between the parties occur or where there appears to be non-compliance, the Monitor shall attempt to resolve such matters in the most expeditious and nonadversarial fashion possible; and
d. The Monitor will seek to minimize interference with the mission of DYS. Defendants will provide timely and complete access to all relevant files, reports, memoranda, or other relevant documents within the control of the Defendants or subject to access by the Defendants; unobstructed access during announced and unannounced on-site tours and inspections to the institutions encompassed by this Stipulation, to include any administrative offices; and unobstructed access to staff and youth and other persons
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having information relevant to the implementation of this Stipulation. The Monitor has the authority to engage in private conversation with any party hereto and their counsel. 248. A review of records by any member of the Monitoring Team shall not constitute a waiver of DYS or any other agency’s quality assurance privilege. Moreover, any such disclosures shall not constitute a waiver or serve as precedent for other legal proceedings with respect to the aforementioned quality assurance privilege. In addition, the Monitoring Team agrees to keep said documentation confidential and not to disclose, publish or use for public consumption any of the records reviewed by the Monitoring Team. 249. In addition to the quality assurance privileges described above, other records or information whose disclosure is objected to by either party based on a claim of privilege, confidentiality, or relevance to the implementation of this Stipulation shall not be disclosed by the Monitor. Such material shall be made available for inspection by the Court, along with a precise statement of the objection or objections to disclosure prepared by the objecting party, and the Court shall render a decision on the matter. 250. In conjunction with the overall revision of the policy and procedures, the Monitor, in consultation with Central Office staff, will prepare an audit instrument to be used as a guide during site visits. Counsel for the parties will be asked to review and comment on the instrument, whose primary objective is to achieve consistency during the site visits. The Monitor also will prepare data request forms for Central
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Office and the various facilities that will be required to submit pre-site visit data to the Monitor. 251. The Monitor shall submit an annual comprehensive report on overall compliance to the parties as well as other regular interim reports noting the areas of progress or lack thereof. The annual comprehensive report shall include data on population demographics, length of stay, discipline, use of force, isolation, programming, education, medical and mental health care, hospitalization rates, inmate complaints, and other indicia of quality of care. 252. The Monitor shall include in his review a longitudinal study of randomly selected youth who shall be followed from commitment through reentry to the community as one tool to use in assessing the impact of this Stipulation. 253. In the event that Fred Cohen is unable or unwilling to serve as the Monitor, the parties shall each nominate two candidates as a Monitor and, with or without the parties’ agreement, the Court will appoint another Monitor from those persons nominated. If the Court does not find any of the nominated persons to be acceptable, the Court shall ask the parties for additional nominations. 254. The Monitor shall not be subject to dismissal except upon good cause and the agreement of both parties or by the Court upon motion of one of the parties and a showing of good cause. 255. The person serving as Monitor in this Agreement shall also serve as Monitor should there be an agreement between the United States of America and the State of Ohio resolving the findings by the United States Department of Justice regarding
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the conditions of confinement at Marion Juvenile Correctional Facility and Scioto Juvenile Correctional Facility.
XVIII. DISPUTE RESOLUTION 256. In the event a dispute arises as to whether Defendants have failed to substantially
comply with any term of this Stipulation, counsel for the parties shall proceed as follows:
a. Counsel for the parties shall make a good faith effort to resolve any difference that may arise between them over matters of compliance, utilizing the Monitor initially in an effort to resolve such dispute. Prior to the initiation of any proceeding to enforce the provisions of this Stipulation, Plaintiffs’ counsel shall notify Defendants’ counsel in writing of any claim that Defendants are in violation of any provision of this Stipulation.
b. Within thirty (30) business days of the receipt of this notice, counsel for Plaintiffs and Defendants shall meet in an attempt to arrive at an amicable resolution of the claim. Either party may request the attendance and involvement of the Monitor at such meeting. If, after twenty (20) business days following such meeting, the matter has not been resolved, Defendants’ counsel and the Monitor shall be so informed by Plaintiffs’ counsel, in writing, and Plaintiffs may then have due recourse to any appropriate legal proceeding or agree that the Monitor may render a final and binding decision. The time frames set out in this paragraph will not prevent the parties from seeking prompt judicial relief in the event of an
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emergency posing an immediate systemic threat to the health or safety of youth. c. The parties anticipate that there will be a consent decree in the case of USA v. Strickland, USDC SD OH 2:08-cv-00475-ALM-MRA. The terms of that decree will require that the DOJ consult with class counsel in this case and that DOJ and Class Counsel jointly utilize this dispute resolution process with respect to any claim by the DOJ that the defendant has failed to substantially comply with any term of the decree in USA v. Strickland, USDC SD OH 2:08-cv00475-ALM-MRA. 257. Any complaints by youth objecting to any conditions of confinement encompassed by this Stipulation shall be addressed through DYS grievance procedures. Exhaustion of such institutional grievance procedures through appeal to the Chief Inspector shall be a condition precedent to any legal action by a youth. During the pendency of this Stipulation, copies of any such complaints resulting in decisions by the Chief Inspector and related documents shall be provided to the Monitor as requested. 258. No legal action seeking equitable relief relating to the issues resolved herein, including a motion to enforce the terms of this Stipulation, shall be filed on behalf of the Plaintiff class or by a member of the Plaintiff class without first resorting to the dispute resolution mechanisms set out in this Stipulation, i.e., advising the Defendants of the issue and making a good faith effort to resolve said issue extrajudicially. 259. The Plaintiffs shall not seek an order of contempt unless and until (1) the
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Plaintiffs have sought to enforce this Stipulation by filing an appropriate motion with the Court and (2) the Court has issued a clear and unambiguous order of specific performance to the Defendants.
XIX. COMPLIANCE AND TERMINATION 260. The parties agree that a five (5) year period is presumptively required to retain,
train and oversee the additional staff and implement the terms agreed upon in this Stipulation. The parties acknowledge the provision of the Prison Litigation Reform Act ( P.L.R.A.), 18 U.S.C.A. § 3626 (F)(b)(1), making prospective relief terminable two (2) years after a court has approved such prospective relief and fully expect that the status of reforms and timetable for actions under this Stipulation will require continued jurisdiction of the court for the entire period set out in this Stipulated Judgment. 261. Oversight by the Monitor shall continue for five (5) years following the entry of this Stipulation unless sooner terminated on motion to the Court by the Defendants, and a finding is made by the Court following a determination on that issue by the Monitor, that substantial compliance has been achieved on all terms and been maintained for a period of two years in all areas. 262. Notwithstanding the P.L.R.A. or any other law, Defendants may move to terminate this Stipulation and dismiss the case on the ground that all of the institutions subject to this Stipulation have been found to be in substantial compliance for at least two years. 263. The court shall find that this Stipulation satisfies the requirements of 18 U.S.C.A. § 3626 (a)(1)(A) and shall retain jurisdiction to enforce its terms. The court shall
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have the power to enforce the Stipulation through specific performance and all other remedies permitted by law.
XX. ATTORNEYS' FEES AND COSTS 264. DYS shall pay Plaintiffs’ reasonable attorneys fees and costs. Plaintiffs and
Defendants shall seek to stipulate the fair and reasonable amount of attorneys’ fees and costs as of the fairness hearing in this action. If a stipulation is not achieved, Plaintiffs shall apply to the Court for an award of fees and costs. In no event shall Defendants contest the fact that Plaintiffs are the prevailing party. Plaintiffs shall receive fair and adequate fees and costs for representation of the class during monitoring of the Stipulation.
XXI. MISCELLANEOUS PROVISIONS 265. Youth with Criminal Charges based on Conduct within DYS Facilities. The
parties shall work together with the Ohio Attorney General (OAG), local courts and local law enforcement to expedite disposition of all criminal cases involving DYS youth based on conduct of the youth in DYS facilities. 266. In entering this Stipulation, the parties agree and represent that this Stipulation is fair, reasonable, and adequate to protect the interests of the class of Ohio juveniles incarcerated within DYS facilities and all parties. 267. This Stipulation is binding upon the Defendants named in this lawsuit, the Defendants' successors in office, employees and agents, and the Plaintiffs. 268. Except where otherwise provided, the Defendants shall be obligated to perform their obligations under this Stipulation upon the date of the filing of the Court's approval of the Order for Injunctive Relief in this matter.
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269. Only the Plaintiffs named in this Stipulation shall have standing to file a motion seeking enforcement of any of the terms and conditions of this Stipulation. As class representatives, Plaintiffs can adequately represent the interest of the class of Ohio juveniles in the custody of DYS. The fact that Plaintiffs have been released from custody will not interfere with their ability to serve as class representatives. Plaintiffs may replace class representatives from time to time as needed upon notice to Defendants and approval of the Court. This Stipulation does not confer, and is not intended to confer, any rights upon any other party.
270. This Stipulation in no way waives or otherwise affects, limits, or modifies the obligations of youth to comply with the exhaustion requirements of the P.L.R.A., any current or future state or federal law governing the rights and obligations of incarcerated persons, and the Ohio Administrative Code and other applicable policies, procedures, or regulations.
271. The Defendants agree that at the present time they are not aware of any conflict between this Stipulation and the Laws of the State of Ohio or any presently existing collective bargaining agreements to which the State is a party. The Defendant DYS Officials further agree that they will not seek any new laws or the execution of new collective bargaining agreements, or any changes or amendments to existing laws or collective bargaining agreements that would undermine the obligations taken in this Stipulation.
272. This Stipulation reflects the entire agreement of the parties and supersedes any prior written or oral agreements between them. No extrinsic evidence whatsoever may be introduced in any judicial proceeding to provide the meaning or
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273. The language of this Stipulation shall be construed as a whole and in accordance with its fair meaning.
274. The obligations governed by this Stipulation are severable and, if for any reason any part of this Stipulation is determined to be invalid or unenforceable, such a determination shall not affect the remainder.
IT IS SO STIPULATED AND AGREED s/Algenon L. Marbley Algenon L. Marbley
United States District Court Judge
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

RODNEY FUSSELL, GARY ROBERTS, and JAMES LOVE
Plaintiffs,
v. REGINALD WILKINSON, KAY NORTHRUP, BRUCE MARTIN, PEDRO OBREGON, MONA PARKS, VICKI WARE, JAMES MCWEENEY, and CINDY LAWSON
Defendants.

: : : : : : Case No. C-1-03-704 (SSB) : : : AGREEMENT ON : DENTAL CARE : : : : : : : :

AGREEMENT ON DENTAL CARE FUSSELL V. WILKINSON Case No. C-1-03-704 (SSB)
TABLE OF CONTENTS
A. General Provisions .............................................................................................. 1 B. Composition of Document .................................................................................. 2 C. Effective Date........................................................................................................ 2 D. Orientation on Access to Care............................................................................. 2 E. Posting ................................................................................................................... 2 F. Basic Goals for Dental Care ................................................................................ 3 G. Juvenile Inmates................................................................................................... 3 H. Dental Administration ......................................................................................... 3 I. Policy & Procedure .............................................................................................. 3 J. Staffing .................................................................................................................. 4 K. Dental Operatories and Equipment.................................................................... 5 L. Dental Screenings ................................................................................................. 6 M. Mandatory Initial Dental Examination ............................................................. 6 N. Oral Cancer .......................................................................................................... 7 O. Urgent Care .......................................................................................................... 8 P. Emergency Care ................................................................................................... 8 Q. Routine Care......................................................................................................... 8 R. Levels of Clinical Care......................................................................................... 9 S. ODRC Dental Review Board............................................................................... 9 T. Broken Appointments.......................................................................................... 10 U. Oral Health Education......................................................................................... 10 V. Periodontal Diagnosis and Treatment................................................................ 10 W. Quality Assurance ................................................................................................ 11
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X. Peer Review .......................................................................................................... 11 Y. Medical History and Consultations .................................................................... 12 Z. SOAP Format ....................................................................................................... 12 AA. Dental Charting.................................................................................................... 13 BB. Condition of Dental Equipment .......................................................................... 13 CC. Credentialing and Privileging ............................................................................. 13 DD. Hepatitis B ............................................................................................................ 13 EE. Dental Program Management............................................................................. 14 FF. Staff and Operatory Implementation ................................................................. 14 APPENDIX A .............................................................................................................. 16 APPENDIX B............................................................................................................... 17 APPENDIX C .............................................................................................................. 24 Dental Stipulation Glossary........................................................................................ 25
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AGREEMENT ON DENTAL CARE A. General Provisions
In accordance with the Stipulation For Injunctive Relief (Nov. 16, 2005) at Section FF: Dental, the parties to said Stipulation hereby reach agreement on the provision of dental services and care to all inmates housed within the custody of the Ohio Department of Rehabilitation & Corrections (ODRC).
By entering into this Agreement on dental care and services the parties intend to resolve all claims to such services and care.
In accordance with Paragraph 113 of said Stipulation, the parties selected as a Dental Investigation Team (DIT) the following experts in dentistry to engage in a detailed study of dental care services within ODRC: Nicholas S. Makrides, DMD, MA, MPH; Donald T. Sauter, DDS, MPA; and, Jay D. Shulman, DMD, MA, MSPH.
On May 22, 2006, in compliance with the Stipulation, the members of the DIT presented the parties and Fred Cohen, Independent Consultant (IC) with a Report detailing their investigation, findings, and recommendations as to dental care services within the ODRC.
As required by Paragraph 113, the DIT included recommendations for needed change in their Report. The parties, joined by the IC, have studied such recommendations, then met and discussed them and reached basic agreement on October 6, 2006. On January 9, 2007 the parties, again joined by the I.C., met in Columbus, Ohio and resolved all remaining differences, reaching a final agreement which is contained in this document and denominated, “Agreement on Dental Care.”
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The details of said Agreement are incorporated herein and, as stated in Paragraph 113, they “are incorporated into this Stipulation and become binding and enforceable in the same fashion as all other provisions contained herein.”
All provisions of the Stipulation relating to grievances, oversight, dispute resolution and modification, enforcement, attorneys’ fees, construction, and any other provisions not specifically and expressly limited to medical care are incorporated by reference into this Agreement.
B. Composition of Document The parties agree that Donald T. Sauter, DDS, MPA and Jay D. Shulman, DMD, MA, MSPH shall be appointed as members of the Dental Oversight Committee (DOC), which shall now become a subcommittee of the Medical Oversight Committee (MOC) and subject to the direction of the I.C.
C. Effective Date The “date of this Agreement” or “effective date of this Agreement” shall be the date this dental Agreement is filed with the Court.
D. Orientation on Access to Care The language of the Fussell Stipulation, Paragraph 55 relating to orientation on access to care is hereby incorporated here with the term “dental” substituted for medical.
E. Posting A summary of the terms of this Agreement shall be posted in prominent locations within each facility encompassed by this Agreement. Multiple copies of the Agreement shall be available for inmate review and photocopying in each such facility.
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F. Basic Goals for Dental Care The basic goals of the dental program incorporated here are to identify dental problems at intake and thereafter, provide relief from pain, eliminate infection and disease, restore and maintain functioning, and provide preventive information and opportunity for inmates to engage in preventive measures.
G. Juvenile Inmates The parties agree that juveniles, defined as persons in the physical custody of ODRC and under the age of eighteen (18), have special dental needs particularly in the area of preventive care and maintenance. ODRC will conduct a study of such needs and prepare a Report to be completed within twelve (12) months of the date of this Agreement with recommendations for specific action to be taken responsive to such Report. Following review and discussion with the parties, the I.C. will determine the actions to be taken, including timeframes for their initiation and completion.
H. Dental Administration There shall be one full-time Director of Dental Services and one full-time Assistant Director of Dental Services. The parties agree that ODRC will change the present organizational chart so that the Dental Director reports directly to the Chief of the Bureau of Medical Services.
I. Policy & Procedure (P & P) ODRC will review and propose changes as needed to all of its dental P & P and present the results of such review to class counsel and the IC not later than six (6) months after the date of this Agreement.
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Class counsel and the IC shall have one (1) month thereafter to review the proposed P & P and to register any objections or suggestions. Any disagreements about P & P that cannot be resolved by the parties shall be referred to the IC, whose decision shall by final and binding.
The P & P will include the mandates of Paragraph 111 of the Stipulation. J. Staffing
DENTISTS: The parties agree that ODRC will provide one full-time properly licensed and privileged staff dentist for every twelve-hundred (1200) inmates. This ratio shall be used to create a general pool of dentists with the precise distribution of these dentists to be determined by ODRC. To the extent that a dentist has non-clinical responsibilities as described in the job description, the non-clinical aspect shall not count towards the staffing ratio. To the extent feasible, ODRC agrees to fill each FTE dentist position with a single dentist. Where this is not possible, the FTE shall be accomplished with no more than two dentists. In extraordinary circumstances ODRC may ask the MOC for a waiver of the “two dentists per FTE” requirement and supply a full statement of reasons therefore. Class counsel shall be informed and have an opportunity to be heard regarding any such requests and will be informed regarding the disposition thereof. The number of dentists generated by this ratio and the subsequent distribution shall be the subject of a staffing study conducted by the MOC under the supervision of the IC. The study will address the issues of inmate ready access to dental care, the
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quality of such care, whether the ratio adopted has generated too few or too many dentists and other matters directly related to the impact of such staffing.
The results of this study shall be completed and distributed at the end of the second year of this Agreement and serve as the basis for any necessary or desirable adjustments. In the event that the parties cannot agree on the findings and staffing implications, the matter shall be referred to the IC for final and binding resolution.
DENTAL HYGIENISTS: The parties agree that ODRC will provide a total of twenty-four (24) licensed dental hygienists in accordance with Appendix C, “Dental Phases” attached hereto. DENTAL ASSISTANTS: The parties agree that ODRC will provide one full-time dental assistant for every full time dentist and an additional dental assistant for each clinic. Further, Reception Centers will be allocated an additional dental assistant. Dental Assistants who do not possess a current Radiology Certificate will have nine months from the signing of this Agreement to obtain such Certificate.
K. Dental Operatories and Equipment Except for each facility designated as a reception center, each full-time dentist shall have at least two complete dental operatories as defined herein. Where there is a compelling reason for modification of this standard, the Defendant shall present such reason or reasons to class counsel and the IC. The parties shall attempt to informally resolve any differences on this issue but failure to do so will lead to a final and binding decision by the IC.
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The equipment minimally necessary for each operatory or for access by each dentist are listed in Appendix A, attached hereto.
L. Dental Screenings All inmates shall be screened by an appropriately trained, mid-level practitioner (MLP) or a person with greater qualifications within seven (7) days of admission to the ODRC. Inmates with Category 1 or 2 dental problems shall be stabilized or palliated by a dentist, physician, or appropriately trained MLP within twenty-four (24) hours.
M. Mandatory Initial Dental Examination (MIDE) A MIDE shall be performed by a dentist on each inmate within ninety (90) days of admission to the ODRC. The MIDE exam shall include a panoramic radiograph for all and be conducted in accordance with the relevant standard of care. This examination shall record all oral disease to include; 1) oral cancer in hard and soft tissues, 2) periodontal disease as determined by Periodontal Screening and Recording (PSR), 3) caries, 4) Temporomandibular Disorders (TMD), and 5) oral facial abnormalities that could indicate other systemic disease processes. Meaningful oral health education and self-care instruction shall be provided during this visit as well. Procedures to access acute and non-acute dental care shall be reviewed with the inmate at this time. Reception inmates shall receive free of charge dental product packets consisting of ADA approved dental floss, toothpaste, and toothbrushes sufficient to sustain the inmates during the reception period.
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N. Oral Cancer The ODRC Dental Director shall develop, with the assistance of a trained Oral Pathologist, a tool to measure and calibrate the competency of all ODRC dentists in conducting oral cancer screening examinations. This tool shall be submitted to the DOC and Class Counsel for review and comment no later than six (6) months after the date of this Agreement. Any biopsy tissues harvested and sent for microscopic examination shall be tracked through use of a log in the dental department and said log shall include at least the following: 1. Date the biopsy was conducted 2. Preliminary differential diagnosis 3. Biopsy site 4. Copy of the consultation with readable name of the surgeon and his contact
phone number; and 5. Copy of the final biopsy report Dental records policy shall be modified to be consistent with the needs of this tracking system. ODRC Dental Records P&P shall be rewritten to ensure that a copy of all consultations initiated by a dentist be provided to the dental clinic and filed within the medical and dental records. Dental procedures will be modified to reflect the above within ninety (90) days of the date of this Agreement. Dental P & P will be modified to reflect the above within six (6) months of the date of this Agreement. The ODRC Dental Director shall ensure through appropriate P & P and the Q.A. program that dentists perform a thorough oral soft tissue examination and document it
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appropriately. Moreover, within six (6) months of the date of this Agreement a system shall be put into place to ensure that: 1) a copy of the biopsy results is placed in the dental chart; 2) there is a follow-up for inmates who have had biopsies with equivocal histologic diagnoses; and 3) within ninety (90) days of the date of this Agreement, ODRC shall establish a Tissue Committee to ensure that inmates diagnosed with oral cancer receive prompt follow-up and treatment.
O. Urgent Care A dental condition that is not life threatening, but will interfere with chewing, sleeping and the ability to comfortably conduct one’s daily activities will be considered urgent. Inmates needing urgent care will be eligible to receive it within 24 hours of registering their request with appropriate ODRC staff as described in the P & P.
P. Emergency Care A dental emergency requires hospital emergency-level care and includes facial fractures, uncontrolled bleeding, and infections not responsive to antibiotic therapy. P & P on point will further specify a dental emergency and describe appropriate coordination measures with medical emergencies
Q. Routine Care Every inmate in the custody of ODRC is eligible for a routine dental examination, cleaning, and continuing oral health education at the end of each twelve (12)-month period of incarceration. Inmate orientation will specify and clarify this opportunity indicating clearly and precisely how and when appointments for routine care shall be made through verbal instruction and a written description in the Inmate Orientation Handbook.
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R. Levels of Clinical Care The parties agree that the ODRC dental system shall strive to provide a quality of care that is 1) consistent with generally accepted professional standards, and 2) at an appropriate level of care. Appendix B, entitled “Clinical Care” and attached and incorporated into this Agreement, describes four (4) levels of care in greater detail than the preceding paragraphs. Appendix B shall be construed as providing authoritative guidelines for the interpretation and implementation of areas of care otherwise described herein and for the review and revision of the P & P on point.
S. ODRC Dental Review Board Within ninety (90) days of the date of this agreement, ODRC shall establish a Dental Review Board (DRB) composed of the ODRC Dental Director, or the Assistant Dental Director, one (1) ODRC dentist, and one (1) Certified Laboratory Technician. The DRB will adopt a procedure to review all cases that fall outside the guidelines established in the P & P. Clinical information about each case shall be sent to the DRB prior to the next monthly meeting. A form shall be included to describe the inmate’s needs/requests and contain relevant information about: length of stay, how long the treatment should take to complete, estimated cost, whether the treatment should be provided in-house, and the recommendation of the referring dentist. Mounted dental diagnostic casts (where relevant) and the justification packet should be evaluated. The ODRC Dental Director will coordinate the clinical information for distribution to the DRB.
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The MOC will monitor the performance of the DRB particularly with regard to the quality of specimens arriving at the laboratory and then reach an opinion on the capability of the DRB to adequately perform its assigned functions without a prosthodontist serving on the DRB.
T. Broken Appointments ODRC agrees to keep a record of all broken dental appointments and on a regular basis ascertain the most frequent reasons for such broken appointments. Each institution, at least annually during the life of this Agreement, will prepare an action plan designed to reduce the number of such broken appointments. Such plan will be reviewed and subject to comment by class counsel and the DOC.
U. Oral Health Education The parties agree that the oral health needs of the inmate population are significant with inmates presenting with more decayed and missing teeth and more periodontal problems than non-prison populations. Non-reception facilities shall make basic oral health materials available for purchase at a reasonable price. Indigent inmates shall be provided the items described in Section L, supra, at no cost.
V. Periodontal Diagnosis and Treatment The ODRC Dental Director shall develop P & P for periodontal diagnosis that requires use of the Periodontal Screening & Recording (PSR) and treatment and education measures responsive to the score obtained from the periodontal probe.
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Inmates with chronic medical diseases that put them at increased risk for morbidity, particularly HIV and Diabetes, shall be placed on a priority list. Particular attention should be paid to periodontal disease diagnosis and treatment.
W. Quality Assurance A Quality Assurance (Q.A.) program shall be developed no later than six (6) months from the date of the Agreement by the ODRC Dental Director to monitor compliance with dental policy and procedure, equipment use and maintenance, dental records and proper documentation, dental radiograph quality, the allocation and quality of removable prosthetics, inmate-patient satisfaction with dental care, and compliance with metrics to be developed as to extraction to filling ratios focusing particularly on the extraction of critical teeth salvageable by root canal (endodontic) treatment.
X. Peer Review Within six (6) months of the signing of this Agreement, the ODRC shall develop a clinically oriented peer review program which, at a minimum, will review ODRC dentists every two (2) years. All clinicians granted provisional credentials will have a peer review completed within ninety (90) days of the start of clinical services. Clinicians found to have concerns at the time of provisional peer review, shall have an additional peer review completed within the next ninety (90) days. The peer review program will include metrics developed by ODRC for evaluating dentist quality and a thorough record review. Peer Review program metrics shall be submitted to DOC and Class Counsel within 90 days of the date of this Agreement for comment prior to formal adoption. This program shall, at a minimum, involve the ODRC Dental Director or his designee examining randomly selected patients treated by each licensed practitioner. This system
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shall have thresholds by which deficiencies in treatment quality or appropriateness can be corrected.
Y. Medical History and Consultations The parties agree that with regard to dental and medical records the critical issues for patient care are convenient and rapid access to the medical and dental records. It is ODRC’s current plan to implement an electronic medical and dental record system. The parties agree that a pilot program shall be implemented on or before December 31, 2007 and that one (1) year thereafter there shall be full implementation. The Defendant may request extensions from the I.C. on a showing of extenuating circumstances. As an interim measure until the record system is fully electronic, the Dental Director will devise a system within 180 days of the date of this Agreement, which will be submitted to the DOC and Class Counsel prior to formal implementation allowing those providing dental care to review the patient’s health history and current medications, and generate appropriate written consultations to assure necessary precautions are taken prior to providing dental treatment. Appropriate orientation to the structure and interpretation of an ODRC inmate medical/dental record shall be provided by the HCA. The ODRC Dental Director shall make medical history taking and documentation a priority issue for dental clinic review.
Z. SOAP Format The ODRC Dental Director shall provide instruction to all dentists within six (6) months of the adoption of this Agreement, at the hiring of new dentists, and annually
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thereafter on how to document emergency or essential / urgent dental care visits using the SOAP format and the Dental Director shall make chart review a priority on his site visits.
AA. Dental Charting The ODRC Dental Director shall provide direction and monitoring to standardize and improve the documentation and completeness of the dental records within six (6) months of this Agreement.
BB. Condition of Dental Equipment The ODRC Dental Director or his designee shall examine the condition of and quantity of dental equipment, instruments, and supplies yearly to ensure they are consistent with this Agreement and adequate to treat the inmate population. No later than sixty (60) days after the date of this Agreement, there should be an equipment replacement plan based on the age and performance of all equipment.
CC. Credentialing and Privileging Within six (6) months of this Agreement, the ODRC agrees to develop a comprehensive credentialing and privileging policy. The HCA and ODRC Dental Director shall monitor compliance. Documentation shall be maintained in Central Office with notification provided to the appropriate facility.
DD. Hepatitis B The HCA shall review and record the immunization status of all dental staff. Documentation of immunization shall be maintained for each dental staff member at Central Office and the institution and be available for review.
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EE. Dental Program Management Productivity: The ODRC shall create and implement within one (1) year of the date of this Agreement a system for reporting dental procedures and productivity. This system ideally would be electronic but in any event shall use the same format and forms at all institutions. Dental P & P shall state clearly that this reporting is mandatory and accuracy is required. The ODRC shall create and implement a monitoring system to track compliance with the productivity reporting policy. If dental providers fail to comply with the productivity reporting policy, or are clearly unproductive, administrative steps shall be taken to impose sanctions. The same one (1) year timeframe, as above, applies. Monitoring Contractors: New contract Requests for Proposals (RFP) shall be written to be consistent with the requirements of ODRC P & P. Dental contractor monitors shall be trained in the use of the contractor monitoring forms and how to initiate action to remedy non-compliance with ODRC P & P. The ODRC Dental Director shall: 1) use the Contract Monitoring Checklist as a part of his Quality Assurance program; 2) ensure that contractors are held financially accountable for lack of compliance with the provisions of the contract to include compliance with ODRC P&P; and 3) develop P&P for dealing with poor contractor performance.
FF. Staff and Operatory Implementation The parties agree that the requisite dental staff, including dentists, hygienists, and assistants, will be retained and placed in a coordinated fashion.
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ODRC retains the discretion to maintain and improve the current system of contracting for dentists and agrees to study the feasibility of establishing a single-source provider system. ODRC further agrees to inform class counsel and the IC of the progress and direction of such study, which shall be completed with six (6) months of the date of this Agreement.
The Dental Phases 1 through 3 will occur in conjunction with Medical Phases 2 through 4. The specific institutions in Dental Phases 1 through 3 are listed in Appendix C.
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APPENDIX A
Necessary Dental Equipment
Operatory Chair Handpiece delivery unit Storage side cabinets
Suction pump and air compressor Handpieces Hand instruments Ultrasonic scalers Tips for ultrasonic scalers Adequate sterilization equipment and space Panorex at reception centers Adequate film processor (not needed if a clinic has digital x-ray) Surgical burs and handpieces Surgical instruments Curing lights Triturators Periapical x-ray machine (digital?) Laboratory equipment to prepare models
Model trimmer Vibrator Articulators to be maintained at the OPI Dental Lab Blood pressure monitoring equipment Dental Surveyor
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APPENDIX B
Clinical Care: Levels of Care
Achieving an acceptable level of oral health for an inmate population is the preferred goal of any correctional dental system. Toward this end, there must be a plan that includes adequate infrastructure and trained staff along with ongoing monitoring of process and treatment outcomes. Acute pain relief, examinations, fillings, and denture construction fall under different levels of care. An inmate may have a high quality of care at a low level or phase of treatment. The converse may also be true. Therefore there must be two goals for the system: 1) to provide acceptable quality of dental care and 2) to provide an appropriate level of dental care.
Level One Level 1 is medical stabilization and relief from severe pain and infection. Examples of this are stabilizing patients with maxillofacial fractures, avulsed teeth, bleeding, pain, and acute infections. These patients should be examined immediately. Infection Dentoalveolar infections can be life-threatening because of airway obstruction and the possibility of cerebral abscess. Consequently, infection must be identified and treated quickly with consistent follow-up. While the infection can often be temporally stabilized by mid-level providers (MLP), the dental source must be isolated and treated in a timely manner to prevent another acute episode and the colonization of resistant organisms reducing antibiotic efficacy.
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Inmates whose complaints suggest a dentoalveolar infection (e.g., pain in conjunction with swelling) should be seen by a dentist, physician, or appropriately trained MLP within 24 hours. Where the complaint includes difficulty in breathing or swallowing, or purulent discharge into the mouth or nose, the inmate should be seen by a dentist, physician, or appropriately trained MLP immediately. MLP’s should have documented training in the identifying and stabilizing dentoalveolar infections with antibiotics and analgesics. A dentist must be on call 24 hours every day but need not examine the inmate after hours if after a discussion with the appropriately trained MLP or physician the dentist feels that treating the tooth that is believed to be the focus of the problem can wait for dental sick call. If the dentist does not believe the problem can wait until the next dental clinic the patient shall be referred to the emergency room. Pain
Pain that interferes with swallowing, eating, or other normal activities requires expeditious (i.e., within 24 hours) treatment by a dentist, physician, or appropriately trained MLP. As with dentoalveolar infections, the inmate may be triaged and stabilized by MLPs or physicians and seen by the dentist at dental sick call. The system must be designed to allow for inmates to be seen within 24 hours for stabilization of their pain and an evaluation of its source. Pain associated with denture irritation can be stabilized by leaving the denture out until the inmate may be seen by a dentist.
Level Two Level two is primarily associated with the dental daily sick call or other requests for urgent care. Inmates with intermittent or constant pain, an inability to eat, and other dental symptoms that cause discomfort should have access to assessment and the
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initiation of treatment within 24 hours by a dentist, physician, or appropriately trained MLP. Examples of Level 2 care are toothaches, infections, and pain of apparent maxillofacial origin.
Level Three Level 3 is disease control or routine care. The acute problems have been stabilized in Levels 1 and 2. Inmates who enter this level require a comprehensive treatment plan. When an inmate progresses to Level 3, he should be free from infection; and pain that interferes with normal daily activities. Dental Caries Carious lesions progress slowly and an early lesion takes several years to progress through the enamel of a permanent tooth. Thus, if existing carious lesions can be stabilized, an inmate with three (3) years or less to serve has a low probability of having caries (decay) break though into the dentin and pulp chamber. As used in this agreement the term “years to serve” means years to an expected Expiration of Stated Term, to a Projected Release Date or an equivalent calculation, but does not refer to mere eligibility for discretionary release. Stabilizing open carious lesions with glass ionomer or other resin-based, restorative material using a conservative restorative approach reduces the total bacteriologic load (TBL) and thus the incidence of new carious lesions. For inmates with three (3) years or less to serve, teeth with caries may be stabilized using resin modified glass ionomer materials or other resin-based, restorative materials. In operative dentistry a dentist will generally remove all decay and place an amalgam (silver alloy) or a light cured reinforced composite resin filling. This generally
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requires the use of local anesthesia and preparing (drilling) an appropriately shaped pattern in the tooth, base placement, placement of pins or Intracoronal retention features, and or acid etching and bonding. This type of direct filling procedures may take 30 minutes to one hour.
Another approach to stabilizing dental caries is to remove only the soft decay with hand instruments and some light rotary instrumentation (anesthesia is generally not required) and place a resin modified glass ionomer (RMGI) material providing there is adequate physical retention for the material. Unlike “silver fillings”, RMGI bonds to the dentin allowing for additional retention to supplement the mechanical retention of the cavity preparation. The literature has shown that this treatment arrests the progression of the caries. While this is not a definitive restoration, it is capable of stabilizing a tooth for several years. This conservative approach can stabilize the tooth until the inmate is released or until the inmate’s oral health has improved at which time Level 4 treatment could be provided.
For longer-term inmates, teeth would be restored more extensively with silver amalgam or composite resin fillings. In patients at high risk for caries, fluoride, and chlorhexadene (an antimicrobial rinse) therapy should be used to reduce the TBL of caries-producing organisms. Both these restorative or dental disease control procedures can be of high quality and help to bring patients to an acceptable level of care for their stay in the correctional system.
Level 3 is where asymptomatic non-restorable teeth will be removed (with proper consent). If the teeth are in need of root canal therapy, they will be stabilized on a case-
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by-case basis following guidelines related to the importance of the tooth to the overall function of the dentition.
Scaling and root planning the teeth to stabilize the periodontium is another Level 3 need. This dental cleaning must remove all the calculus/tartar along with polishing the teeth and providing hands-on oral hygiene education. Periodontal Disease
Based on the results of the PSR performed at the MIDE, many patients will need to be seen by a dental hygienist to scale and remove hard deposits from the roots of the teeth to allow for long term healing and control of inflammation and infection. There appears to be a close association between periodontal disease and some chronic diseases such as diabetes and HIV. Inmates with those chronic diseases that put them at particular risk should be offered the opportunity to be examined yearly for periodontal disease and given some priority in seeing the dental hygienist due to their compromised healing response.
Level Four Level 4 care is to generally be reserved for the longer-term population; inmates who will likely be in ODRC custody for more than three (3) years. Endodontics Root canal therapy is considered to be Level 4 care once the infection and pain are controlled. Root canal therapy will be limited to those cases with compelling reasons for saving a particular tooth. In those very limited instances where the dentist performing the service feels that endodontics is warranted, this service may be provided in accordance with the following criteria: a) The dentist must evaluate the total oral health
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of the inmate and there must be excellent oral hygiene and periodontal health, b) the tooth must be in occlusion, c) low caries risk is noted, and d) there is sufficient clinical crown, such that a full-coverage, cast restoration is not anticipated. Prosthodontic Treatment
If the inmate does not have occlusion of at least the maxillary and mandibular second bicuspids as well as the anterior teeth, some type of partial or full denture should be considered. Prosthodontic (denture) treatment is Level 4 care. Thus, the inmate’s length of sentence must be considered. Full and partial dentures are Level 4 care. While these treatments are desirable for all who fit the diagnosis, they are often not necessary to prevent pain or significantly improve chewing function. A soft diet shall be made available for inmates whose difficulty chewing interferes with proper nutrition.
Partially edentulous inmates must have their mouths fully prepared prior to fabrication of a removable partial denture. This preparation may require a surgical procedure to ensure that the maxillary and mandibular ridges on which the dentures will rest have a physiologic shape. This would mandate eligibility for Level 3 care to be able to progress to Level 4. For dental prostheses to be wearable there must be supporting structures that can keep them stable under the forces of chewing and speaking. The occlusion (bite) must be carefully recorded to keep the finished denture in harmony with the patient’s jaw position and chewing cycle.
P & P shall describe in detail the fitting and preparation of dentures for those inmates found eligible for this level of care. The MOC shall carefully monitor all issues related to eligibility decisions and the quality of prosthodontic devices.
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Removable Prosthetics P & P shall provide criteria for a dentist to decide whether and when an inmate qualifies for removable partial dentures. These criteria shall be based on inmate need, sentence length, and the condition of the inmate’s supporting structures and commitment to good oral self care. The P & P shall address: • Fabrication of temporary partial dentures • Fabrication of cast framework partial dentures • Fabrication of complete dentures and immediate dentures • Denture repairs • Denture remakes • Dental review board • Quality of impressions, casts and interocclusal records
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APPENDIX C1

Inst.

Phase

ACI/OCF

1

CMC/FPRC

1

CRC

1

LorCI

1

MCI

1

NCCI

1

ORW

1

ToCI

1

Inst. BECI DCI/MEPRC GCI LeCI LoCI NCI NEPRC OSP SCI WCI

Phase 2 2 2 2 2 2 2 2 2 2

Inst. CCI HCF LaeCI MaCI ManCI NCCTF PCI RiCI RCI SOCF TCI

Phase 3 3 3 3 3 3 3 3 3 3 3

* Dentists – DRC will employ one (1) full-time properly licensed and privileged staff dentist for every 1200 inmates. This ratio shall be used to create a general pool of dentists with the precise distribution of these dentists to be determined by ODRC.
* Dental Hygienists (RDH) – DRC will provide a total of twenty-four (24) licensed dental hygienists. This ratio shall be used to create a general pool of hygienists with the precise distribution of these dentists to be determined by ODRC.
* Dental Assistants (DA) – DRC will provide one (1) full-time dental assistant for every full-time dentist and an additional dental assistant for each clinic. Reception Centers will be allocated an additional dental assistant.

1 Please see Fussell Stipulation, Appendix E for DRC Facility and Staffing Legend.
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Dental Stipulation Glossary
Abutment Teeth are adjacent to edentulous areas and support fixed or removable partial dentures. A prosthesis rests and is anchored to the abutment tooth as a bridge anchored to its abutments.
Active Biologicals are microorganisms that are used to test whether a Steam Sterilizer is operating at the appropriate temperature, pressure, and time cycle.
Acute/Urgent Care is care directed at the alleviation of orofacial pain, swelling, bleeding, and infection. Circumstances that are life-threatening should be treated as medical emergencies
An Autoclave or Steam Sterilizer is a decontamination device powered by electricity that is used to pressure and steam-sterilize dental instruments.
A Biopsy is the surgical sampling or excision of tissues suspected of being pathologic. This is followed by histologic examination by a pathologist.
A Bite Wing X-ray is an intraoral radiograph that shows the crowns and part of the roots of the posterior (back) teeth. It is used to diagnose dental caries, subgingival calculus, defective restorations, and periodontal bone loss.
Bloodborne Pathogens are pathogenic microorganisms that are present in human blood that can cause disease in humans. These pathogens include, but are not limited to, hepatitis B virus (HBV) and human immunodeficiency virus (HIV).
The Bloodborne Pathogens Protocol is a set of instructions issued by the Centers for Disease Control and Prevention (CDC) to guide health care facilities in the controlling the spread of infectious disease during medical and dental treatment.
A Cast Framework Removable Partial Denture is a prosthesis that replaces teeth in a partially dentate arch and clips/clasps and rests on the natural teeth that remain. The cast framework allows the forces of chewing to be directed to the remaining natural supporting teeth (Abutment Teeth) in such a way as to preserve their periodontal health.
Category 1 Care is a term used in ODRC 68-MED-12 to define emergency care. ODRC 68MED-12 defines a dental emergency as a serious, disabling condition of the teeth or surrounding tissues, manifested by severe symptoms that occur suddenly or unexpectedly.
Category 2 Care is a term used in ODRC 68-MED-12 to define essential care. ODRC 68-MED12 defines Category 2 Care as the treatment of conditions of an urgent nature, such as grossly decayed teeth and/or significant pain.
A Cavity is a defect in tooth enamel caused by decomposition (demineralization) of enamel due to exposure to acidic byproducts of oral bacteria.
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Comprehensive Dental Treatment is dental treatment provided by following a well-formulated Dental Treatment Plan. This Treatment Plan should be based on a thorough intraoral examination, a carefully taken and reviewed health history, a review of diagnostic x-rays, and an interview with the patient. The goal of this treatment is a dental disease-free oral cavity and a patient educated about the causes, cures and preventive strategies to maintain oral health.
A Custom Impression Tray is a dental impression tray made on a plaster model of the patient’s mouth. It is used to carry and mold impression material around oral structures which will support dental prostheses
A Dentoalveolar Infection is an infection associated with the teeth and surrounding bone.
Dental Amalgam / "Silver” Filling is a direct filling material consisting of various metals formulated to solidify. Dental Amalgam is condensed into a cavity preparation (pattern drilled into the tooth) after Dental Caries has been removed. The filling material restores the chewing surfaces and tooth contacts.
A Dental Assistant assists the dentist in performing comprehensive care. The Dental Assistant also responsible for disinfecting and sterilizing equipment and instruments that are used and contaminated during dental procedures. Often Dental Assistants will keep the appointment schedules and perform other clerical work necessary for the day to day operation of the clinic. Depending on a state’s Dental Practice Act, a Dental Assistant who has had the appropriate training (Radiology Certificate) may expose dental radiographs.
Dental Calculus (Tartar) is the hard deposits that form on the teeth secondary in incomplete dental plaque removal. These deposits must be removed by direct contact with sharp hand instruments or an ultrasonic scaler.
Dental Caries is a chronic infection of tooth enamel characterized by a loss of mineralized structure resulting in a Cavity.
A Dental Cast/Model Trimmer is a device that uses a rotating abrasive disk and water to shape portions of dental casts.
Dental Casts are models made of a gypsum product that serve as a rigid representation of patient’s hard and soft tissues used in mastication or to support a denture base. This model is most commonly used as a base for the fabrication of a fixed or removable prosthesis.
A Dental Chair is power reclining chair used to hold and position the patient during a dental procedure. It is a component of a Dental Operatory.
A Dental Clinic is a defined space dedicated to the provision of dental care. Typically, it is composed of at least one Dental Operatory, a small Dental Laboratory, and equipment to expose and develop necessary dental x-rays.
A Dental Composite Filling is direct filling material consisting of acrylic resin reinforced with glass particles formulated to solidify on its own or with the application of a specific wavelength of light applied by a hand held source. This dental composite filling is condensed or injected into a void in the tooth designed to remove dental caries, retain the filling material, and restore the chewing surfaces and tooth contacts. This resin is tooth colored and is most often used with the front teeth.
26

A Dental Compressor is a specialized air compressor used to provide air pressure to the Dental Headpieces and Dental Operatory.
A Dental Curing Light is a hand-held light source used to harden certain dental filling materials.
A Dental Impression is a negative representation of a patient’s teeth and denture bearing areas made with a soft material that becomes rigid after several minutes in the patient’s mouth. This dental impression is then filled with a gypsum product to form a plaster or dental stone model of the patient’s jaws.
A Dental Laboratory is a defined space used to prepare impressions and models for prosthodontic treatment.
Dental Impression Material a flowable paste or putty which becomes rigid when placed in the patient’s mouth and is used in a Dental Impression Tray to make a negative mold of the teeth into which dental plaster can be placed to form a model of the patient’s mouth.
Dental Impression Tray is a dental instrument shaped like the dental arch and cupped to hold and carry Dental Impression Material. These trays can be reusable or disposable.
Dental Hand Instruments are specialized tools used in the mouth and surrounding structures to perform comprehensive dental treatment. These instruments are largely stainless steel or disposable. They are used to cut and shape dental tissues and direct filling restorations
A Dental Handpiece is an air-powered dental tool used in conjunction with dental burs and attachments, to perform comprehensive dental treatment.
A Dental Hygienist is a licensed professional trained to educate patients about dental disease and oral self care techniques and remove soft and hard deposits from a patient’s teeth and tissues. Depending on the State Dental Practice Act, a Dental Hygienist may work independently, or under General of Direct Supervision of a Dentist.
Dental Operatory is a term often used to describe the collection of equipment needed for providing comprehensive dental treatment. An Operatory or Dental Operatory typically contains a dental chair, a dental light, a Dental Handpiece delivery system, cabinets for instruments, materials and supplies, a sink, and necessary connection to compressed air, dental vacuum, potable water, electric power, and waste disposal.
Dental Plaque is a tenacious film comprising bacteria, bacterial byproducts, and debris that forms on the teeth continuously. Dental Plaque bacteria and byproducts lead to the formation of dental caries, dental calculus/tartar deposits, and periodontal disease. Dental Plaque is associated with Periodontal Disease.
A Dental Practice Act is a state statute that defines the scope of dental and dental hygiene practice and specifies the clinical activities of non-dentists that require General or Direct Supervision.
Dental (Oral) Prophylaxis the process of cleaning the teeth (removing Dental Plaque and calculus) which will include oral hygiene instruction and education, removal of soft and hard deposits, assessment of oral health and polishing of the teeth.
27

Dental Restoration describes fillings, fixed and removable partial dentures, full dentures, implants or single crowns.
A Dental Suction Device is a specialized vacuum pump plumbed into the Dental Operatory to allow the dental team to suction oral fluids and particles from a patient’s mouth
Dental Treatment Plan is a list of dental procedures to be performed by on a patient with dental disease and or loss of tooth structure and ability to masticate adequately. This Dental Treatment Plan is arranged in an order that guides the dentist to treat the most important problems first and work to improve the supporting structures of the mouth to support more advanced restorative procedures if needed.
A Dental Vibrator is a device used to prepare dental casts.
Dentist is licensed professional who is trained to diagnose and treat conditions of the hard and soft tissues of the mouth.
Edentulous means being without teeth.
Endodontic Treatment. See Root Canal Treatment.
A Full/Complete Denture is a dental prosthesis that rests on an Edentulous (toothless) dental arch (jaw) and is retained by suction. The Full/Complete Denture replaces all the teeth in that arch required by the patient to chew, speak and allow for acceptable esthetics.
General Supervision means that a dentist has authorized a dental hygienist to perform procedures but need not be present in the treatment facility during the performance of those procedures.
Glass Ionomer Filling describes a resin material that contains fluoride, bonds to the internal structure of a natural tooth and can be flowed or packed into an area of the tooth where caries has been removed to restore the contour, contacts and chewing surfaces of the tooth.
HCA refers to Health Care Administrator with the job description provided by the ODRC.
A Jaw Relationship Record is a rigid index used to capture the position of a patient’s jaws that permits a prosthesis to be fabricated so that the patient’s chewing cycle is replicated.
A Midlevel Practitioner is a health care worker who is trained to assist physicians in patient diagnosis and treatment. The most common Midlevel Practitioners are registered nurses and physician assistants.
Occlusion is the alignment of the teeth of the upper and lower jaws when brought together.
Oral Cancer Screening is a standard portion of a dental examination that examines the hard tissue (radiographically) and soft tissue by visual inspection and palpation to look for signs of oral cancer lesions such as color and texture changes in the oral tissue or abnormal swelling.
28

Oral Hygiene Instruction or Oral Self-Care Education provides the dental patient information on the cause and effects of oral disease, the benefits of oral health, and instruction on the use of the toothbrush, floss, and other oral hygiene aids as necessary to conform to the shape and position of the teeth and fixed dental prostheses and remove dental plaque.
Operatory. See Dental Operatory.
An Oral Pathologist is a dental specialist who has completed an American Dental Associationapproved training program that deals with the nature, identification, and management of diseases affecting the oral and maxillofacial regions. Oral pathology is a discipline that investigates the causes, processes and effects of these diseases. The practice of oral and maxillofacial pathology includes research, diagnosis of diseases using clinical, radiographic, microscopic, biochemical or other examinations, and management of patients.
Oral Prophylaxis. See Dental Prophylaxis.
Oral Self-Care Education. See Oral Hygiene Instruction.
A Panoramic X-ray is an extraoral radiograph of a patient’s entire jaw and surrounding structures in a flat plane. Panoramic radiographs are often used for forensic patient identification and initial screening.
A Panoramic X-ray Machine produces an extraoral radiograph of a patient’s entire jaw and surrounding structures in a flat plane.
A Periapical X-ray is an intraoral radiograph that shows entire teeth in a small segment of the mouth, used to diagnose caries, dentoalveolar infection, periodontal disease, subgingival calculus, some oral pathology, and diseases of the dental pulp.
Periodontal Care is treatment directed at reducing or eliminating Periodontal Diseases.
Periodontal Diseases are chronic inflammatory conditions (infections) of the gingiva (gums) and bone
A Periodontal Infection is an infection associated with dental soft tissues, teeth and surrounding bone. This condition is a subset of a Dentoalveolar Infection.
Periodontal Screening and Recording (PSR) is a process where a calibrated dental probe is used to measure the position of the tissue and bone surrounding the teeth. Specific teeth in each sextant (one sixth of the patient’s mouth) are measured and examined. Notations are made of the measurements, presence of dental calculus, and bleeding.
A Periodontist is a dentist who has successfully completed American Dental Associationapproved advanced training in the diagnosis and treatment of the diseases of the tissues and bone that support the natural teeth.
A Plaque Index is a numerical score that summarizes the extent to which a patient has removed Dental Plaque from his teeth. A disclosing dye is used to stain plaque that adheres to the teeth. A common Plaque Index is the proportion of tooth surfaces that has plaque.
29

Prosthodontic Treatment is treatment of the deficiencies in the chewing function of patients who have lost tooth structure or teeth.
A Prosthodontist is a dentist who has successfully completed American Dental Associationapproved advanced training in the diagnosis and treatment of deficiencies in the chewing function of patients who have lost tooth structure or teeth.
Quality of Care is a measure of the organizational and technical competence of dental care. Adequate or acceptable quality of care is that which meets the technical and scientific standards described in the peer-reviewed dental literature. It is a measure of the extent to which comports with professional standards.
A Radiology Certificate is a credential, earned by attending a course and passing an examination that permits a Dental Assistant to expose radiographs.
Root Canal (Endodontic) Treatment describes the process of entering a natural tooth to remove infected nerve and blood vessels that reside in canals which run from the crown of the tooth to the end of the root. After the diseased tissue is removed, a neutral filling material placed in the root canal space preventing the loss of the tooth.
Root Planing is the debridement and smoothing of the root surface as part of periodontal treatment performed by a Dentist or Dental Hygienist.
Scaling is a procedure performed by a dentist or dental hygienist that involves removing mineralized deposits (calculus or tartar) from the tooth. Scaling is a component of an Oral Prophylaxis. This is accomplished using both Dental Hand Instruments and an Ultrasonic Scaler.
Steam Sterilizer. See Autoclave.
SOAP Format is a standardized approach to recording patient encounters. SOAP is an acronym for Subjective (patient chief complaint), Objective (clinical findings), Assessment (diagnosis), and Plan (treatment).
Silver Filling. See Dental Amalgam.
Spore Testing is the process of validating the calibration of a Steam Sterilizer by testing its ability to kill Active Biologicals such as bacteria and spores (organisms that are difficult to kill). After the organisms are cycled through the Steam Sterilizer, they are sent to a laboratory for culturing. The results are retained in a Spore Test Log.
A Spore Test Log is a record of all Spore Tests performed in a Steam Sterilizer during a given period.
Stabilization of Dental Caries is a broad term that could describe brief and lengthy restorative procedures whose purpose is to remove caries and restore function. In the context of stabilizing caries in a dental population, stabilization will often consist of removing caries and placing a provisional restoration which may not be prepared with all the characteristics of an end stage restoration
30

Surface Disinfection is the process of decontaminating exposed areas of a Dental Operatory and any equipment which is not used intraorally. This is typically performed by “spray, wipe, spray” technique using an antibiological liquid. A Surgical Handpiece is a special high torque handpiece used in the surgical removal of teeth and surgical procedures on the mandible and maxilla. It is powered by compressed air or gas and is designed so that expelled gas is not directed onto the surgical site. Tartar. See Dental Calculus. A Triturator is a device used to mix direct filling dental materials. An Ultrasonic Scaler is an electronic and water-driven unit used to remove dental calculus (tartar) from teeth while providing and ultrasonic lavage to the teeth. The Ultrasonic Scaler will be a wand connected to a tabletop power source or an Ultrasonic Handpiece connected directly to the Dental Operatory. Urgent Care. See Acute Care. An X-ray Processor is machine used to develop x-ray film.
31

 
 Case: 1:03-cv-00704-SSB-JGW Doc #: 202 Filed: 06/01/09 Page: 1 of 7 PAGEID #: 1975

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Rodney Fussell, et al., Plaintiffs,
vs. Reginald Wilkinson, et al.,
Defendants.

: Case No. 1:03-cv-704 : : : : : : : :

ORDER

William E. Martin, a class member and an inmate at the

Southern Ohio Correctional Facility in Lucasville, filed a pro se

motion for various types of relief. (Doc. 195) Martin seeks to

intervene as a party in this case, and for appointment of counsel

to represent him. He asks the court to grant a hearing on his

motion, and order several other inmates to be brought to court to

testify. Martin also requests the Court to hold a long list of

state officials in contempt for violations of the Consent Decree,

to order the release of 25,500 inmates from Ohio prisons, and to

award sanctions to Martin for every day he is denied proper

medical treatment.

Martin initially alleges, without any cognizable factual

support, that Ohio Governor Strickland has “ordered ODRC

officials to withhold all medical treatment that is not

prescribed by a chronic care clinic.” He also accuses Governor

Strickland of “micromanaging the ODRC” by allegedly restricting

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Case: 1:03-cv-00704-SSB-JGW Doc #: 202 Filed: 06/01/09 Page: 2 of 7 PAGEID #: 1976
certain food items, or requiring the correctional facility to serve peanut butter too many times during the week. He complains that inadequate heat and hot water were available for part of the past winter, and that terrorists are given access to better food and facilities than Martin is being provided by ODRC. These several accusations are completely unsubstantiated, and the Court rejects them out of hand.
With regard to Martin’s complaints about his medical care: he filed four grievances over the past several months. In the first (No. 09-08), he alleges that he was seen by a physician on September 12, 2008, who refused to renew his medications for Imodium, Nasarel, Naphcon-A, and Hydrocortisone cream. He claims this doctor told him that she was hired specifically to lower medical expenses, causing her to deny him access to these medications. Martin describes various conditions for which these medications were made available to him in the past. He also complains that the physician he saw is an osteopathic doctor who he claims is not a “real doctor.”
His second grievance (No. 11-08) complains that he submitted four care requests concerning additional ibuprofen for what he describes as periodic headaches. He contends he has not seen a medical doctor after these requests. He reiterates his complaints about the osteopathic physician, and complains that the facility is understaffed in violation of the consent decree’s
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requirements. Martin’s third grievance, No. 02-09, reiterates his
complaints about headaches. He admits, however, that he was prescribed additional ibuprofen by Dr. Bautista on November 11, 2008 (after he filed his second grievance), but then he claims that Dr. Redden refused to renew it on January 26, 2009. Dr. Redden told him that he might have “cluster headaches” but was not prepared to make that a definitive diagnosis, and instead did “nothing” for him. He also complains that he “probably had a seizure” in mid-February, and insisted that he be allowed to have an MRI. He again saw Dr. Bautista on February 20, and claims the doctor told him she would review his file and renew his medications, but he was then told to leave because Dr. Bautista was struggling with a patient backlog. He asserts he was unable to tell the doctor about his seizure or to ask for an MRI.
Martin’s fourth grievance, No. 03-09, reiterates many of these complaints, adding an allegation that he was denied medication by Dr. Redden based on his race, because Dr. Redden prescribed similar medication for an African-American inmate.
Each of Martin’s grievances went through the institutional review process, resulting in a final decision of the Chief Inspector. (See Doc. 198, Exhibit 1, at pp. 1, 8, 15, and 24 respectively for each of the grievances.) In each case, the Assistant Chief Inspector Nora Parks denied Martin’s complaints
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based upon her review of his medical records and by speaking with available personnel involved in his care. Parks notes that during the September 12 exam, the nurse stated that Martin exhibited no symptoms of the problems of which he complains (sinus problems, diarrhea or hemorrhoids). When Martin was hospitalized at OSU, the specialist documented his history of several chronic conditions but did not mention these current complaints. Parks noted that over the counter prophylactics are available from the commissary for these conditions.
Regarding Martin’s second grievance and lack of adequate ibuprofen, Parks noted that Martin saw Dr. Bautista on November 11 and was given ibuprofen. Parks also instructed HCA to have the physician review Martin’s file to maintain any appropriate medication orders, and to monitor his consumption of ibuprofen given his chronic Hepatitis C. Parks also cautioned Martin about refraining from making derogatory comments about the credentials of medical staff.
In Parks’ determination of Martin’s third grievance, she noted that Dr. Redden discontinued the ibuprofen in order to rule out rebound headaches, and scheduled Martin for an eight-week followup. Martin complained to a nurse on February 18 about the alleged seizure incident in his cell, and he saw Dr. Bautista only two days later. The notes of that visit state that Martin only wanted medication renewal, and say nothing about the seizure
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incident. Martin was also seen for blood pressure checks on February 24 and March 3, at which time he did not complain about this problem. Despite Parks’ conclusion that Martin did not discuss the alleged seizure with the doctor on February 20, she instructed HCA to refer Martin for an evaluation of this issue by a physician.
Parks’ decision with respect to Martin’s fourth grievance notes that Dr. Owen (the osteopath about whom Martin initially complained) is no longer at SOCF. Dr. Redden’s examination of January 26, and her prescribed treatment plan, were based on her medical judgment, and Martin’s subjective criticism was misplaced. Martin’s blood pressure is being taken weekly, and Martin has not complained of problems since a February 20 sick call. Martin’s allegations of racial discrimination are completely unfounded, and therefore Parks again rejected his grievance.
Having exhausted his administrative remedies concerning these issues, as the consent decree requires, Martin’s pending motion accuses all of the involved state personnel (from Governor Strickland to the physicians and nurses at SOCF) of violating the consent decree by denying him required medical care. His pleadings are laced with unsupported derogatory statements about the motives for and reasoning behind the institutional determinations of his complaints. He states that “no other
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Case: 1:03-cv-00704-SSB-JGW Doc #: 202 Filed: 06/01/09 Page: 6 of 7 PAGEID #: 1980
inmate” has been charged a co-pay since Governor Strickland “ordered” treatment to be withheld, suggesting this establishes invidious racial discrimination. As noted above, this allegation is rejected out of hand. Despite the fact that Parks’ March 5 decision (on grievance No. 02-09) specifically instructs HCA to arrange a physician evaluation concerning his reported seizure, Martin also complains that he will “never” see a doctor unless this Court intervenes. He then admits that since the resolution of his four grievances, his Inderal prescription has been renewed.
Martin’s motion to intervene, and for appointment of counsel, is denied. Martin sought to intervene in this action prior to this Court’s approval of the consent decree, and he raised similar complaints about medical care then that he raises now. The Court rejected Martin’s request to intervene in 2005, finding that the named class representatives fairly and adequately represented the class. While Martin is apparently not personally satisfied with appointed class counsels’ representation of his subjective complaints, that is insufficient to justify appointing separate counsel for Martin, especially in view of his unsupported and in some cases outlandish accusations. This Court has no doubt that if there were some factual support for Martin’s accusations about Governor Strickland and the reduction in medical care, the federal monitor and/or class
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counsel would promptly bring that situation to the attention of

the Court. No such concerns have been presented by the monitor

or the Medical Oversight Committee.

The Court finds that Martin has not established a violation

of the consent decree entered in this case, and is not entitled

to the various forms of relief he seeks in his motion. The

motion (Doc. 195) is therefore DENIED.

SO ORDERED.

DATED: June 1, 2009

s/Sandra S. Beckwith Sandra S. Beckwith Senior United States District Judge

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Rodney Fussell, et al., Plaintiffs
v.
Reginald Wilkinson, et al., Defendants

Case No. 1:03-cv-704
ORDER

This m atter is before the C ourt on the Magistrate Judge’s Report and Recommendation filed August 26, 2009 (Doc. 207).
Prope r notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C ), including notice that the parties would waiv e further appeal if they failed to file objections to the Report and Recommendationin a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). As ofthe date of this Order, no objections to the Magistrate Judge’s Report and Recommendation have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C. § 636, we find the Magistrate Judge’s Report and Recommendation correct.
Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is herebyADOPTED. Class member William E. Martin’s motion for relief from judgment (Doc. 205) is DENIED.

Date: September 21, 2009

s/Sandra S. Beckwith Sandra S. Beckwith, Senior Judge United States District Court

 
 Case: 1:03-cv-00704-SSB-JGW Doc #: 216 Filed: 11/02/10 Page: 1 of 6 PAGEID #: 2028 Case: 1:03-cv-00704-SSB-JGW Doc#: 2 Filed: 10/20/10 Page: 1 of 6 PAGEID #: 2022

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RODNEY FUSSEL, et al.,

Plaintiffs,

Case No. C-1-cv-03-704

v.

Sr. District Judge Beckwith

REGINALD WILKINSON, et al.,

Defendants. ~repuud Modifications to the Stipulation for Injunctive Relief

I. Introduction

On November 22, 2005, the Court approved the Parties' Stipulation for Injunctive Relief

("Stipulation") in this inmate civil rights class action. (Doc. 140.) That Stipulation resolved class

action issues pertaining to the department wide delivery of medical and dental services within the

Ohio Department of Rehabilitation and Correction ("ODRC''). (Doc. 140.) By the express terms

of the Stipulation, the jurisdiction of the Court is to terminate five years after the Court's approval.

(Doc. 140, ~ 143.) Also the Stipulation expressly allows the Parties to seek to modify the Stipulation.

(Doc. 140, ~ 147.)

The Parties agree that additional time is required to implement provisions of the terms

pertaining to the medical services set forth in the Stipulation. ODRC has elected to change from a

contract system to a civil service model in the provision of medical services at its institutions. The

complexity of this undertaking has, in part, contributed to the need for an extension of time to

implement the Stipulation. The Parties agree that all applicable terms to seek modification of the

Stipulation have taken place. Accordingly, the Parties agree to modify the Stipulation as follows.

Case: 1:03-cv-00704-SSB-JGW Doc #: 216 Filed: 11/02/10 Page: 2 of 6 PAGEID #: 2029 Case: 1:03-cv-00704-SSB-JGW Doc#: 215 Filed: 10/20/10 Page: 2 of 6 PAGEID 2023

II. Stipulated Changes

A. Stipulated Changes to Section MM, Stipulation Oversight

Under Section MM of the Stipulation, "Stipulation Oversight," the Parties agree to the

following changes:

1.

Paragraph 126 of the Stipulation now is to read as follows:

126. The parties agree to continue the appointment of Fred Cohen, LL.B., L.L.M.,

Professor Emeritus of the School of Criminal Justice, S.U.N.Y. at Albany, as Independent

Consultant (I.C.) and head of the MOC, which is to continue to serve as consultants to provide

oversight of the provisions of this Stipulation. The parties further agree that the scope of the

oversight by the I.C. and MOC is to be modified as set forth in paragraphs 139 to 139.4, as

presented below.

2.

Paragraph 139 of the Stipulation now is to read as follows:

139. Oversight of the medical provisions of this Stipulation by the I.C. and MOC shall

continue for eighteen (18) months following November 22, 2010, the originally contemplated date

by which remediation efforts in this case were expected to be completed. The Parties agree to alter

the period of oversight for the dental provisions of the Stipulation as explained in new paragraph

112.1, stated below.

139.1.

The parties agree that monitoring of the medical provisions in the final

eighteen (18) months shall be modified and will be either (1) discontinued for some institutions, (2),

focused upon particular issues with document review only at some institutions (3) focused upon

particular issues with limited on-site visits at some institutions or (4) full on-site review for other

institutions.

139.2.

The parties agree that institutions will be assigned to one of four categories

for monitoring purposes:

2

Case: 1:03-cv-00704-SSB-JGW Doc #: 216 Filed: 11/02/10 Page: 3 of 6 PAGEID #: 2030 Case: 1:03-cv-00704-SSB-JGW Doc#: 215 Filed: 10/20/10 Page: 3 of 6 PAG D 2024

1.

Substantially compliant- no further monitoring required;

n.

Substantially compliant but for specified areas to be addressed through paper

monitoring;

iii. Substantially compliant but for ongoing concerns for specific area(s) noted to

be addressed through in-person, on-site monitoring from a portion of the MOC best suited to

address the concerns; and,

iv. Ongoing concerns in specified areas(s) or the entire operation with ln-

person, on-site monitoring by the entire MOC.

139.3.

The parties agree that the I.C. and Dr. Shansky will designate which

institution falls into which of the foregoing categories.

139.4

The parties agree that the I.C. and Dr. Shansky may move an institution from

one category to another, based upon the same principles as found in paragraph 132.ii of the

Stipulation.

3.

Paragraph 112.1 shall be added to the Stipulation to provide as follows:

112.1

Oversight of the Dental Stipulation by Don Sauter, D.D.S., and the I.C. will

terminate on June 30, 2011. From the point of the extension of this Stipulation until February 28,

2011, oversight will include document review and limited on-site inspections. After February 28,

2011 until June 30, 2011, oversight will consist of assistance with self-monitoring and quality

improvement reviews. On or before June 30, 2011, Dr. Sauter and the I.C. will provide BOMS with

a final report and such consultation as may be needed or deserved regarding implementation of the

dental agreement.

3

Case: 1:03-cv-00704-SSB-JGW Doc #: 216 Filed: 11/02/10 Page: 4 of 6 PAGEID #: 2031 Case: 1:03-cv-00704-SSB-JGW Doc#: 215 Filed: 10/20/10 Page: 4 of 6 PAGEID #: 2025

B. Changes to Section 00, Compliance and Termination

Under Section 00 of the Stipulation, which addresses compliance and termination terms,

the Parties agree to the following changes:

4.

Paragraphs 143 and 144 of the Stipulation now are to read as follows:

143. The parties had agreed in November 2005 that a five (5) year period was

presumptively required to retain, train and oversee the additional medical staff agreed upon in this

Stipulation. The parties now agree that an additional eighteen (18) months from November 22,

2010, is needed to continue the process to retain, train and oversee the additional medical staff that

has to be added to reach ODRC's goal of converting all medical health positions to civil servant

positions. The parties agree that the terms of this Stipulation shall terminate on June 22, 2012. The

parties continue to acknowledge the provision of the P.L.R.A, 18 U.S.C. § 3626(F)(b)(1), making

prospective relief terminable two (2) years after a court initially approved prospective relief involving

any correctional facility. The parties expressly agree that there is no intent to extend the duration of

the Court's jurisdiction as to the dental provisions of this Stipulation or lawsuit.

144. Notwithstanding the P.L.R.A. or any other law, Defendants may move to terminate

this Stipulation and dismiss the case on the grounds that all institutions subject to this Stipulation are

in substantial compliance with the terms of this Stipulation

4

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Case: 1:03-cv-00704-SSB-JGW Doc#: 215 Filed: 10/20/10 Page: 5 of 6 PAGEID #: 2026
C. Conclusion
The Parties agree that no other terms of the Stipulation, Doc. 140, are to be changed.
IT IS SO STIPULATED AND AGREED.
For the Plaintiff Class:
s/ A/ Gerhard.rtcin
Alphonse A. Gerhardstein (023484) Gerhardstein & Branch Co. LPA 432 Walnut Street, #401 Cincinnati, OH 45202 (513)-621-9100 Fax: (513)-345-5543 Email: agcrhardstein@GBtirm.com Trial Counsel for Plaintiffs Date: October 5, 2010
s/ David Singleton
David Singleton (0074556) Ohio Justice and Policy Center 215 E. 9'h Street, Suite 601 Cincinnati, OH 45202 (513) 421-1108 Fax: (513) 562-3200 dsingleton@ohiojpc.org Co-counsel for Defendants Date: October 5, 2010
For the Defendants:
s/]. Eric Ho//owt!Y
]. ERIC HOLLOWAY (0063857) Assistant Attorney General Criminal Justice Section Ohio Attorney General Richard Cordray 150 East Gay Street, Suite 1600 Columbus, OH 43215 (614)-644-7233; Fax: (866) 459-6675 Email: J;:ric. Hollmvay@O hioAttorneyGcneral.gov Trial Counsel for Defendants Date: October 20,2010
5

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WHEREFORE, for good cause shown, it is SO ORDERED.
fif~~~ Sandf:(~~:SeniorJudge
United States District Court for the Southern District of Ohio
6

 
 Case: 1:03-cv-00704-SSB-JGW Doc #: 218 Filed: 08/10/11 Page: 1 of 3 PAGEID #: 2035 (1 of 3)

No. 11-3528
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Aug 09, 2011
LEONARD GREEN, Clerk

In re: ROBERT MARTIN, Petitioner.

) ) ) ORDER ) )

Before: GUY, SUTTON, and GRIFFIN, Circuit Judges.

Robert Martin, an Ohio inmate, seeks a writ of mandamus directing the clerk of the Southern District of Ohio to file Martin’s pro se “motion” in this class-action suit. He also moves for leave to proceed in forma pauperis. The underlying action, Fussell v. Wilkinson, No. 1:03-cv-00704 (S.D. Ohio), was brought on behalf of a class of Ohio prisoners and sought injunctive relief and damages for alleged “system-wide deliberate indifference to the serious medical needs of Ohio prisoners.” In 2005, after the certification of a plaintiff class, the district court approved a settlement agreement.
In April 2011, Martin wrote a one-paragraph letter to the district court judge stating the doctor at his facility had told him that further diagnostic testing had been denied and complaining about the grievance procedures. On April 28, 2011, the district court clerk returned Martin’s letter and advised him to submit it to the class counsel. Martin asks this court to direct the district court clerk to file the letter as a motion under Federal Rule of Civil Procedure 60(b).
It is “axiomatic that ‘[m]andamus relief is an extraordinary remedy, only infrequently utilized by this court.’” John B. v. Goetz, 531 F.3d 448, 457 (6th Cir. 2008) (quoting In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997)). Before a petitioner may invoke the extraordinary writ of mandamus against the district court, “‘he must establish that he has a clear and certain right and that the duties of the respondent are ministerial, plainly defined and peremptory.’” United States v. Bilsky, 664 F.2d

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613, 619 (6th Cir. 1981) (quoting Martins Ferry Hosp. Ass’n v. NLRB, 654 F.2d 455 (6th Cir. 1981)). In this case, the clerk had no such duty. Martin’s letter is not a motion for relief, and the clerk reasonably returned the letter, with the suggestion to contact class counsel.
The petition for a writ of mandamus is DENIED. Because we deny the petition, the motion to proceed in forma pauperis is denied as moot.
ENTERED BY ORDER OF THE COURT
Clerk

Case: 1:03-cv-00704-SSB-JGW Doc #: 218 Filed: 08/10/11 Page: 3 of 3 PAGEID #: 2037 (3 of 3)

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: August 09, 2011

Robert Martin Pickaway Correctional Institution P.O. Box 209 Orient, OH 43146
Re: Case No. 11-3528, In re: Robert Martin Originating Case No. : 03-00704
Dear Sir or Madam,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. James Bonini Enclosure No mandate to issue

s/Jill Colyer Case Manager Direct Dial No. 513-564-7024

 
 Case: 1:03-cv-00704-SSB-JGW Doc #: 219 Filed: 04/11/12 Page: 1 of 10 PAGEID #: 2038

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Drexell A. Greene, Larry D. Lambert, Troy J. Busta, John Pasturzak, and William L. Ridenour,
Plaintiffs,
vs.
Gary C. Mohr, Director of Ohio Department of Rehabilitation and Correction, et al,
Defendants.

: Case No. 1:12-cv-144 : : (Related Case: : No. 1:03-cv-704) : : : : : : : : : :

ORDER

Before the Court are motions to dismiss filed by Defendant

Mohr and unidentified Doe defendants (Doc. 10), and by John R.

Kasich, Governor of the State of Ohio (Doc. 11). Defendant

Mohr’s motion contends that the Court lacks jurisdiction over

Plaintiffs’ claims alleging system-wide constitutional

deficiencies in the Ohio prison system’s provision of medical and

dental care. The motion also contends that Plaintiffs’ claims

are barred by res judicata. Governor Kasich contends that the

complaint alleges respondeat superior liability against him at

best, which is not a basis for alleging his liability under 42

U.S.C. §1983.

Plaintiffs have responded to both motions and raised

essentially the same arguments in each response. (See Docs. 13

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and 14). Defendants have filed reply briefs (Docs. 15 and 16), and Plaintiffs then filed two motions to supplement the record with materials concerning their administrative appeals. (Docs. 19 and 21) The motions to supplement the record are granted. Plaintiffs also filed a motion to strike Governor Kasich’s reply brief (Doc. 16), claiming it is untimely. That motion is denied, because the reply brief was timely filed and it is clear that Plaintiffs received a copy of it.
FACTUAL BACKGROUND Plaintiffs are inmates at the Chillicothe Correctional Institution, proceeding pro se. Their complaint seeks an order convening a three-judge court to decide, pursuant to the Prison Litigation Reform Act of 1996 (“PLRA”), whether a prison population reduction order should be entered. Plaintiffs allege that various policies and political decisions have resulted in a dramatic over-crowding of Ohio’s prison facilities, and that the state has not followed recommendations for reducing prison population. They allege that this severe overcrowding has resulted in a failure to provide constitutionally adequate dental and medical health care, and that the medical care system has been “woefully and constitutionally inadequate” for more than two decades. (Compl. at ¶¶4, 6) They allege that they have been denied even a minimal level of care, with consequences resulting in some inmates’ death. They identify several purported system-
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wide deficiencies in the medical system, such as inadequate screening of incoming inmates, delays in providing care, untimely responses to emergencies, interference with medical care by the custodial staff, inadequate and incompetent medical personnel, and an inadequate prison grievance system. Plaintiffs further contend that the “primary cause” of the unconstitutionally inadequate medical and dental care services being provided to them is “system-wide overcrowding in Ohio’s prisons” because Ohio is operating its prisons at 170% of original design capacity. (Compl. ¶¶11, 12)
Plaintiffs allege jurisdiction arising under 28 U.S.C. §2284 and 18 U.S.C. §3626, the Prison Litigation Reform Act, and that venue is appropriate in the Eastern Division of this Court, where this case was originally filed. (Compl ¶¶ 14-15) Defendants Kasich and Mohr are sued in their official capacities for acting under color of state law to allegedly violate Plaintiffs’ Eighth and Fourteenth Amendment rights. They further allege that exhaustion of administrative remedies is not required, because they are not basing their claims on any specific deficiency in medical or dental care rendered to any of them.
In Paragraph 36 of their complaint, Plaintiffs admit that they are members of the mandatory class certified by this Court in Fussell v. Wilkinson, Case No. 1:03-cv-704 (S.D. Ohio), an action filed in this Court in 2003. Plaintiffs admit that the
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Fussell class was represented by attorneys Alphonse Gerhardstein and David Singleton. They admit that the Fussell case was resolved on November 22, 2005, when the Court approved a settlement agreement and entered an Order granting injunctive relief to the Plaintiffs. The State of Ohio agreed to undertake broad reforms in the provision of medical and dental services to all Ohio inmates. The original agreement and consent decree was scheduled to terminate in November 2010, but Plaintiffs’ complaint does not acknowledge the fact that its term has been extended to June 2012.
Plaintiffs further allege that the State has failed to perform the terms of the Fussell decree. They contend that conditions have worsened since 2005, and that the state has “all but abandoned” efforts to improve medical care because of the severe overcrowding in Ohio’s prisons. They assert that their complaint satisfies the requirements of 18 U.S.C. §3626(a)(3)(A), which requires a finding that a previously-entered court order for less intrusive relief has failed to remedy the alleged constitutional deprivations. They therefore seek an order appointing a three-judge court to consider their complaints of systemic deficiencies in medical services and to enter a prison population reduction order.
After briefing on Defendants’ motions to dismiss was complete, this matter was transferred by the Eastern Division
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judge to the docket of this Court, because this Court has presided over Fussell since it was filed. (Doc. 20). The transferring court found that this case is related to Fussell under Local Rule 3.1(b). The Order notes that a failure to reassign this matter to this Court “could subject the consent decree to interpretation by different courts,” which would be inefficient and possibly disruptive of the laudatory goals of the consent decree.
ANALYSIS Both of the pending motions rely upon Fed. R. Civ. Proc. 12(b)(1) (lack of subject matter jurisdiction) and (b)(6) (failure to state a claim) in seeking dismissal of Plaintiffs’ complaint. The ODRC Defendants in particular argue that the Fussell court has exclusive jurisdiction over claims for equitable or injunctive relief concerning the systemic delivery of medical and dental services. They contend that claim preclusion bars Plaintiffs from re-litigating the adequacy of dental services, because the Fussell stipulation with respect to those services has been terminated by agreement of the parties. Plaintiffs have not directly responded to Defendants’ arguments. Instead, they present their own views of the propriety of federal jurisdiction over their claims, and cite statutes they believe support their right to proceed. With respect to Fussell, Plaintiffs merely repeat the allegations of
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their complaint that overcrowding in Ohio prisons has caused the
Defendants to “abandon” all attempts to adhere to the Fussell
decree or to provide adequate medical and dental services.
Plaintiffs also rely on (and borrow liberally from) an order
entered in ongoing California litigation challenging that state’s
medical and mental health services for prisoners. A three-judge
court was appointed by the Ninth Circuit in two consolidated
district court cases. That three-judge court eventually entered
a prison population reduction order, concluding that clear and
convincing evidence established that it was the only available
remedy to cure long-standing deficiencies that the state had not
remedied despite prior court orders and decrees. See Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, 2009 U.S. Dist. LEXIS
67943 (E.D. Cal., August 4, 2009). As described in that order,
two federal lawsuits had resulted in a series of remedial orders
entered by two district courts. However,
... as the state time and again failed to meet its own remedial targets -- let alone to achieve constitutional compliance -- both courts were forced to adopt increasingly drastic remedies, culminating in the Plata court's 2005 appointment of a receiver to manage the prison medical system. Ultimately, by late 2006 it became apparent that the overcrowding in California's prisons rendered the efforts of the courts, the Coleman Special Master, and the Plata Receiver utterly insufficient. At the request of the Plata and Coleman courts, the Chief Judge of the United States Court of Appeals for the Ninth Circuit convened this three-judge court to consider the plaintiffs'
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request for a court-ordered reduction in the California prison population. During the pendency of this proceeding, the outlook for California's prisons has only grown dimmer. The state is now in the throes of a fiscal crisis that renders it unable or unwilling to commit the necessary resources to fix the problems in its prisons. Id. at **41-42. The Fussell consent decree remains in effect in Ohio. On November 2, 2010, this Court approved a stipulation reached by the parties to extend the effective term of the decree and the Independent Monitor’s medical oversight duties for a period of 18 months, through June 22, 2012. The parties also agreed to extend the term of the decree with respect to dental services to June 30, 2011, with reduced independent oversight continuing to that date for quality assurance and self-monitoring by the state. This Court continues to receive regular reports from the Independent Monitor, Dr. Fred Cohen, and he often assists the Court with investigating individual inmate complaints, as does Plaintiffs’ counsel. Moreover, Plaintiffs have ignored the express provisions of the Fussell decree addressing dispute resolution procedures. Paragraph 140 provides that if a dispute arises over whether the State has failed to comply with the terms of the stipulation, counsel for the parties will make a good faith effort to resolve the dispute, using the services of the Independent Monitor if needed. If counsel are unable to resolve the matter, Plaintiffs’
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counsel may then bring the situation to the attention of the Court or may agree that the Monitor may render a final and binding decision. This Court has not received any notice from counsel for the parties or from Dr. Cohen that the state has utterly failed to comply with the terms of the decree as Plaintiffs allege. And this Court has not been asked to make any findings that the consent decree has failed to remedy the systemic deficiencies in the medical care system that the Fussell class initially identified. Such a finding is a necessary precondition to the appointment of a three-judge panel under 18 U.S.C. §3626(a)(3)(A).
The Fussell decree also provides, at Paragraph 141, that complaints by inmates objecting to any of the provisions of the decree must be brought through the institutional grievance procedures, and that exhaustion of those remedies is a precondition to any legal action by an inmate. While Plaintiffs have attached copies of decisions by the Chief Inspector concerning grievances filed by Plaintiffs Greene, Lambert, and Ridenour, their complaint expressly disavows any individual claim based upon deficient care provided to any of them on any specific occasion. Plaintiffs instead repeatedly allege system-wide deficiencies, and they expressly seek only equitable and injunctive relief and the appointment of a three-judge panel to consider their request for a population reduction order.
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Finally, Paragraph 142 of the Fussell decree clearly provides:
No legal action seeking equitable relief relating to the issues resolved herein, including a motion to enforce the terms of this stipulation, shall be filed on behalf of the Plaintiff class or by a member of the Plaintiff class without first resorting to the dispute resolution mechanisms set out in this Stipulation advising the Defendants of the issue and making a good faith effort to resolve said issue extrajudicially. While Plaintiffs admit they are members of the Fussell class, they do not allege any facts demonstrating that any of them have even attempted to comply with this provision. In this regard, counsel for the ODRC Defendants notes in the reply brief that he visited Plaintiffs “in a good faith effort to discuss any concerns they have with their dental and medical care. However, Plaintiffs refused to discuss any medical issues and instead demanded that their sentences be commuted or they would publish the complaint with the press.” (Doc. 15 at 3, n.2.) Even when offered the opportunity to seek an extrajudicial remedy, as the Fussell stipulation expressly provides, Plaintiffs apparently rejected it. The Court concludes that Plaintiffs’ complaint must be dismissed, because Plaintiffs have violated the terms of the Fussell decree in the manner discussed above. If Plaintiffs have a legitimate complaint about systemic deficiencies in the state’s medical care system, they must avail themselves of the remedies
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and procedures outlined in the Fussell decree prior to

instituting any legal action of their own. Out of an abundance

of caution, the Court will dismiss this case without prejudice,

to permit Plaintiffs to pursue those remedies and procedures

should they choose to do so.

CONCLUSION

For all of the foregoing reasons, the Court grants the

Defendants’ motions to dismiss. (Docs. 10 and 11) The motions

to supplement the record (Docs. 19, 21) are granted. Plaintiffs’

motion to strike the reply brief (Doc. 17) is denied.

Plaintiffs’ motion for service of process through the CM/ECF

system (Doc. 22) is denied as moot. A copy of this Order shall

be docketed in the Fussell case.

Plaintiffs’ complaint is dismissed without prejudice. Costs

are awarded to Defendants pursuant to 28 U.S.C. §1915(f).

SO ORDERED.

THIS CASE IS CLOSED.

DATED: April 11, 2012

s/Sandra S. Beckwith Sandra S. Beckwith Senior United States District Judge

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 Case: 1:03-cv-00704-SSB-JGW Doc #: 237 Filed: 09/24/12 Page: 1 of 2 PAGEID #: 2985

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RODNEY FUSSELL, et al.,

:

Plaintiffs,

:

Case No. 1:03-cv-00704

v.

:

Judge Beckwith

REGINALD WILKINSON, et al.,

:

Defendants.

:

AGREED ORDER TERMINATING THE STIPULATION FOR INJUNCTIVE RELIEF
Although a dispute exits between the parties as to the extent of which the Defendants’ provision of medical care to inmates meet constitutional standards, the parties, Plaintiffs, Rodney Fussell, et al., and Defendants, Reginald Wilkinson, et al., having entered into a private settlement agreement, attached hereto as Exhibit A, concerning all matters pertaining to the Stipulation for Injunctive Relief, the Motion for Extension of the Stipulation for Injunctive Relief, and the Court having been fully advised and considered the same;
IT IS HEREBY ORDERED AND ADJUDGED that the Stipulation for Injunctive Relief and all modifications thereto is hereby TERMINATED;
IT IS FURTHER ORDERED that this Court no longer maintains jurisdiction over this matter, nor will it have jurisdiction over the settlement agreement;
FINALLY, the evidentiary hearing previously scheduled for October 9, 2012 is cancelled.
This Order is Final and Appealable

Case: 1:03-cv-00704-SSB-JGW Doc #: 237 Filed: 09/24/12 Page: 2 of 2 PAGEID #: 2986
HAVING SEEN AND AGREED TO: MICHAEL DEWINE Ohio Attorney General
/s/ Dustin J. Calhoun DUSTIN J. CALHOUN (0072429) Associate Assistant Attorney General Criminal Justice Section 150 East Gay St., 16th Floor Columbus, Ohio 43215-6001 Tel: (614) 644-7233; Fax: (866) 467-3560 Dustin.Calhoun@OhioAttorneyGeneral.gov TRIAL COUNSEL FOR DEFENDANTS and /s/ Rickell L. Howard RICKELL L. HOWARD (0081982) DAVID SINGLETON (0074556) Ohio Justice and Policy Center 215 East Ninth Street, Suite 601 Cincinnati, OH 45202 (513) 421-1108 ext. 19 rhoward@ohiojpc.org TRIAL COUNSEL FOR PLAINTIFFS
2

Case: 1:03-cv-00704-SSB-JGW Doc #: 237-1 Filed: 09/24/12 Page: 1 of 2 PAGEID #: 2987
SETTLEMENT AGREEMENT (PSA)
In consideration for the termination of the Stipulation for Injunctive Relief and all
modifications thereto as it relates to Fussell, eta/., v. Wilkinson, eta/., currently pending
before Judge Beckwith in the United States District Court for the Southern District of
Ohio, Western Division, Case No. 1:03-cv-00704, the Parties, Ohio Justice and Policy
Center (OJPC) on behalf of the Class Plaintiffs and Ohio Department of Rehabilitation
and Correction (ODRC) on behalf of the Defendants), by and through counsel, agree to
the following for a period of two years:
1. A Motion for Extension of Stipulation for Injunctive Relief ("Motion") was filed by Plaintiffs on June 6, 2012. The Motion alleged that Defendants failed to comply with the Modified Stipulation and remedy system-wide constitutional violations in Ohio's prison medical care system. The Defendants have denied both allegations and nothing in this agreement shall constitute or be construed as an admission by the Defendants of these allegations. The Final Report of the Medical Oversight Committee found the Defendants to be constitutionally compliant;
2. The Parties agree that they will sign a stipulation requesting that the Court terminate jurisdiction of this case;
3. In light of this PSA, the parties agree that an evidentiary hearing is not necessary;
4. ODRC will pay OJPC $45,000 during the first year of the PSA and $15,000 for the second year of the PSA to assist with staffing costs;
5. ODRC will provide written reports to OJPC during the first year of the PSA that will provide a summary of the consultants' evaluations of ODRC's delivery of health care, orally supplemented with a more detailed review of the clinical analysis that will be provided during quarterly meetings at the option of OJPC. The consultants will be available during the first year to respond to inquiries submitted to ODRC by the OJPC;
6. ODRC will provide policy updates, protocol changes and notice of service delivery changes to OJPC during the second year. During this second year, ODRC will work collaboratively with OJPC on an as needed basis for both systemic and individual inmate issues;

Case: 1:03-cv-00704-SSB-JGW Doc #: 237-1 Filed: 09/24/12 Page: 2 of 2 PAGEID #: 2988
7. The composition of the consultation team will consist of Fred Cohen, Dr. Ronald Shansky and Barbara Peterson;
8. The Institutions to be evaluated shall be selected by ODRC and the consultation team;
9. During the term of the PSA, the Parties agree in good faith to communicate, consider and attempt to resolve issues regarding medical leadership and staffing, delays in care, and medication discontinuity in ODRC institutions where these issues have been a problem, such as Franklin Medical Center, Ohio Reformatory for Women, Pickaway Correctional Institution/Frazier, Chillicothe Correctional Institution, Toledo Correctional Institution, and Allen Correctional Institution. The Plaintiffs understand that any proposed solutions to the above-identified problems require time and resources to implement fully.
/i,.f4 On this the _.t-V_ day of September, 2012 by:
MICHAEL DEWINE Ohio Attorney Gener.~l }
~ ~//// /~------
DUSTIN . CAL OUN Assistant Attorney General Criminal Justice Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215 Phone: (614) 644-7233
Counsel for Defendants
·cM/1~£
. RICKELL l.'fl()W) DAVID SINGLETON Ohio Justice and Policy Center 215 East Ninth Street, Suite 601 Cincinnati, Ohio 45202 Phone: (513) 421-1108
Counsel for Plaintiffs
2

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Rodney Fussell, et al, Plaintiffs,
vs. Reginald Wilkinson, et al,
Defendants.

: Case No. 1:03-cv-704 : : : : : : : :

ORDER This Order is intended to summarize the events in this case over the past several months, and to set forth the Court’s findings and conclusion that the Stipulation for Injunctive Relief entered in November 2005 is and should be terminated, pursuant to the parties’ stipulation for dismissal (Doc. 237).
FACTUAL BACKGROUND This action was filed on October 14, 2003 by a class of Ohio prison inmates, alleging that the State of Ohio’s provision of medical care to them failed to meet constitutional requirements. After this Court certified the class, the parties agreed to engage in a fact-finding process by a team of medical and legal experts. That team, led by Professor Fred Cohen, submitted a detailed report in January 2005, which served as the basis for additional negotiations between the parties. In November 2005, the parties reached a stipulation providing for an award of injunctive relief to the class, by which the Defendants agreed to provide medical and dental services to Ohio inmates “within the framework of the Eighth Amendment and reasonably consistent with generally accepted
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medical science and of a quality acceptable within prudent professional standards. Where a range of acceptable treatments are available, the inmate-patient has no right to any particular treatment, to any particular caregiver, or to change any particular location for treatment deemed appropriate by the health care provider.” (Doc. 140, Stipulation for Injunctive Relief at ¶27) The parties further agreed that a five-year period was “presumptively required” in order to achieve the core goals set forth in the stipulation, while also recognizing that the Prison Litigation Reform Act, 18 U.S.C. §3626(F)(b)(1), states that prospective injunctive relief is terminable after two years. (Id. at ¶¶ 143-144)
After an evidentiary hearing, this Court approved the stipulation, noting it was achieved through arms-length negotiations by experienced counsel, and with the assistance of recognized experts in the field of inmate medical care. The Court also noted that the plaintiffs faced an almost insurmountable obstacle to the prosecution of their classwide claims, due to the lack of funds to engage in the extensive and timeconsuming discovery that would be required in order to show any systemic Eighth Amendment violations. The Court specifically concluded that the settlement served the public interest in assuring that constitutionally adequate medical and dental care is provided for Ohio inmates. (Doc. 141, Order Approving Settlement)
On November 2, 2010, this Court approved modifications to the original stipulation that were agreed to by the parties. ODRC was in the process of converting all of the medical staff positions to the civil service, and it agreed to extend the stipulation to complete that process. The parties agreed to extend the stipulation for an additional eighteen months, to June 22, 2012, at which time it would expire by its terms.
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They also agreed that the stipulation with regard to dental services would expire on June 30, 2011. (Doc. 216, ¶¶ 121.1, and 143-144) During the period of the stipulation, this Court received regular reports from the Medical Oversight Committee that detailed both the progress being made and continuing problems encountered at the various state institutions. The monitor and counsel also willingly assisted the Court from time to time in investigating and responding to individual complaints about medical care.
On June 6, 2012, Plaintiffs filed a motion to extend the stipulation, and to stay its termination pending a ruling from the Court. (Doc. 227) The Defendants opposed the motion but conceded that a stay of the termination date would be appropriate pending the submission of the final report from the Medical Oversight Committee and Mr. Cohen, the Independent Consultant. The Court therefore stayed the termination date to permit the parties and the Court to review Cohen’s anticipated report. (Doc. 229)
The final report was submitted to this Court on July 16, 2012, and was filed in the record with the Defendants’ response to Plaintiffs’ motion to extend. (See Doc. 234, Exhibit A) The Medical Oversight Committee’s findings include its recommendation that “... the Court find no current and ongoing violations of the Eighth Amendment. Indeed, the more appropriate question may be whether the Stipulation is currently necessary, which is the inquiry fashioned in Hadix v. Johnson, 228 F.3d 662, 673 (6th Cir. 2000), and reiterated at Hadix, 420 Fed. Appx 480, 485 (6th Cir. 2011). If ‘currently necessary’ is the decisional touchstone, the Court also may find that the Fussell Stipulation is now not necessary, and as the parties initially agreed, should expire by its own terms on June 22, 2012.” (Id. at p. 6) The Report also stressed to the Court that the Committee’s identification and discussion of “problems” in medical care provision is not,
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and should not be understood to be, an identification of any constitutional violation or a failure by the Defendants to substantially comply with the terms of the stipulation for injunctive relief. Rather, the Committee’s effort over the period combined its duty of oversight of the stipulation with extensive consultation services to ODRC on improvements to the various health care systems identified in the original stipulation. The Report further stated that ODRC has voluntarily secured state funding for a twoyear contractual period of additional quality assurance oversight services to be provided by Mr. Cohen, Dr. Shansky, and Nurse Peterson, all members of the MOC. Mr. Cohen specifically commended the efforts made on behalf of the class by class counsel Mr. Singleton, and his staff at OJPC. This Court concurs in that observation, as the efforts of Plaintiffs’ counsel throughout this case have been instrumental in achieving the goals of the stipulation.
The balance of the Committee’s report exhaustively discusses the improvements in ODRC’s systems that have been achieved at the various penal institutions throughout the state. It also identifies some remaining problems in aspects of ODRC’s provision of medical care. This Court has carefully considered the entire Report, and the specific comments from the MOC Team members Fred Cohen; Madie LaMarre, M.N.; Karen Saylor, M.D.; Ronald Shansky, M.D. and Barbara Peterson, R.N., incorporated in the Report. This Court specifically commends the willingness of ODRC to successfully obtain additional funding for the two-year period during which Mr. Cohen and his team will continue to assist the state in improving quality assurance programs and procedures.
During a status conference with the parties on August 21 to explore whether the -4-

MOC’s Final Report mooted Plaintiffs’ motion to extend the stipulation, the parties informed the Court that they had been engaged in fruitful discussions about an ongoing monitoring agreement. But because Plaintiffs did not withdraw their motion to extend, the Court set an evidentiary hearing for October 9, 2012. (See Doc. 233) Following that conference, a group of eleven class members filed a document on September 11 entitled “motion for leave to file amicus curiae brief” regarding the motion to extend the stipulation. (Doc. 235) These class members raised various complaints about their medical care. Most of the cited incidents relate to one class member, Mr. Hendricks, and it is obvious from the document that Mr. Hendricks is very familiar with the ODRC grievance procedures and is well able to file lawsuits to prosecute his individual claims. The document also describes several other inmates’ complaints about aspects of their medical care. These class members then offer a number of procedural changes they believe would improve medical services; they also suggest that Class Counsel has simply “monitored” the stipulation, and not “enforced” its terms.
Defendants filed a motion to strike this pleading, as amicus curiae briefs are not permitted, and because these individuals are represented by class counsel. (Doc. 236)
Finally, on September 24, 2012, the parties filed a stipulation of dismissal and a private settlement agreement.1 (Doc. 237) The stipulation provides that the parties have agreed that the 2005 Stipulation should expire as scheduled, and that this Court shall no longer have jurisdiction over that Stipulation. The private settlement agreement states
1 18 U.S.C. §3626(c)(2) specifically address “private settlement agreements” and provides that the statute does not preclude private agreements that do not meet PLRA’s strict requirements for granting injunctive relief, “if the terms of that agreement are not subject to court enforcement...”.
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that during the two-year period of ongoing oversight and consultation services provided by members of the MOC, as described in their Final Report, ODRC has agreed to pay additional sums to class counsel to cover some of OJPC’s costs attendant to OJPC’s ongoing involvement with the consultants’ services. For example, ODRC has agreed to provide written reports to OJPC during the first year, summarizing the consultants’ evaluations and holding quarterly meetings at OJPC’s option. During the second year of the contract, ODRC has agreed to work collaboratively with OJPC, as needed, on both systemic and individual inmate issues.
DISCUSSION The 2005 Stipulation for injunctive relief has achieved remarkable improvements in the overall quality of inmate medical care in Ohio. The Court commends all parties for their willingness to work collaboratively and to seek solutions to identified problems rather than devote time and resources to pursuing difficult and complex litigation. As did the parties in 2005, the Court recognizes that the PLRA prescribes a two-year presumptive limitation on prospective injunctive relief. Despite that statutory presumption, Defendants agreed to a longer initial period and then agreed to extend the stipulation to allow the MOC to continue to report to this Court about the transition to civil service staffing for medical care. The Final Report submitted by Fred Cohen, whose own efforts along with those of the members of his team have been exemplary throughout the past seven years, fully supports the agreed-upon termination of the stipulation. Even if Plaintiffs had not reached a private settlement and had not withdrawn their motion to extend, this Court would have been required to find a current and ongoing systemic violation of the class members’ constitutional rights, and then could only grant
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relief that is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary” to correct that violation. See 18 U.S.C. §3626(a)(1)(A). Based on all of the evidence before the Court, particularly the MOC’s Final Report and the attachments to the now-withdrawn motion to extend, the Court could not have concluded that ODRC’s provision of medical care to the class as a whole is constitutionally inadequate, or amounts to a deliberate indifference to state inmates’ needs. To the contrary, it is apparent that the level of service and care has markedly improved and that any previous alleged system-wide constitutional deficiencies have been remedied.
With respect to the individual class members’ submission of an “amicus brief” (Doc. 235), the Court agrees that these class members are represented by class counsel in this matter, and therefore cannot submit pleadings pro se. But even if the document were properly before the Court, the incidents and allegations described by these class members do not support the suggestion of ongoing systemic deficiencies that rise to the level of constitutionally inadequate care on a systemic level. The Court will not strike the document from the record, but concludes that these class members have not shown that ODRC has failed to comply with the terms of the 2005 stipulation.
CONCLUSION For all of these reasons, the November 2005 Stipulation for Injunctive Relief and all modifications thereto is hereby TERMINATED. This Court no longer has jurisdiction over this case, and will not have any jurisdiction over the parties’ private settlement agreement. The evidentiary hearing scheduled for October 9, 2012 is hereby vacated.
-7-

Defendants’ motion to strike the motion for leave to file amicus curiae brief (Doc.

236) is denied, and the motion will remain part of the record. To the extent that the

motion for leave to file amicus brief (Doc. 235) seeks any relief on behalf of the

submitting class members or an extension of the 2005 Stipulation, it is denied.

SO ORDERED.

THIS IS A FINAL AND APPEALABLE ORDER.

THIS CASE IS CLOSED.

DATED: October 2, 2012

s/Sandra S. Beckwith Sandra S. Beckwith Senior United States District Judge

-8-

 
 Fussell v. Wilkinson
United States District Court for the Southern District of Ohio, Western Division June 30, 2005, Decided ; June 30, 2005, Filed Case No. 1:03-CV-704

Reporter: 2005 U.S. Dist. LEXIS 13010

Rodney Fussell, et al., Plaintiffs, v. Reginald Wilkinson, et

al., Defendants.

Opinion by: Sandra S. Beckwith

Subsequent History: Settled by, Motion granted by Fussell Opinion v. Wilkinson, 2005 U.S. Dist. LEXIS 30984 (S.D. Ohio, Nov.

22, 2005)

Order

Disposition: [*1]
Counsel: For Rodney Fussell, Gary Roberts, James Love, Plaintiffs: Alphonse Adam Gerhardstein, Gerhardstein Branch & Laufman Co. LPA, Cincinnati, OH; David A Singleton, Keith Eric Syler, Prison Reform Advocacy Center, Cincinnati, OH.
Christopher R Bruggeman, Intervenor Plaintiff, Pro se, London, OH.
Scott G Mattimore, Intervenor Plaintiff, Pro se, London, OH.
For Director Reginald Wilkinson, individually and in his official capacity (Ohio Department of Rehabilitation and Correction), Kay Northrup, individually and in her official capacity (Ohio Department of Rehabilitation and Correction), Dr Bruce Martin, individually and in his official capacity (Ohio Department of Rehabilitation and Correction), Pedro Obregon, individually and in his official capacity (Southern Ohio Correctional Facility, Institution Chief Medical Officer), Mona Parks, individually and in her official capacity (Southern Ohio Correctional Facility, Health Care Administrator), Vicki Ware, individually and in her official capacity (London Correctional Institution, Health Care Administrator), Dr. James McWeeney, individually and [*2] in his official capacity (London/Lebanon Correctional Institution, Institution Chief Medical Officer), Cindy Lawson, individually and in her official capacity (Lebanon Correctional Institution, Health Care Administrator), Defendants: Marianne Pressman, Joseph M. Mancini, Ohio Attorney General - 2, Cincinnati, OH; Mark David Landes, J Eric Holloway, Isaac Brant Ledman & Teetor - 2, Columbus, OH.
Michael A Kelley, Intervenor, Pro se, Blacklick, OH.
Judges: Sandra S. Beckwith, Chief Judge, United States District Judge.

On April 18, 2005, this Court issued an order denying Christopher R. Bruggeman's motion for intervention as of right in this matter. Mr. Bruggeman now asks the Court to certify the issue of his right to intervene pursuant to Rule 24(a) of the Federal Rules of Civil Procedure for interlocutory appeal. Mr. Bruggeman brings the present motion pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1292(b). Rule 54(b) applies only to judgments, however, and is, therefore, inapplicable to the Court's April 18 [*3] order. For that reason, the Court considers Mr. Bruggeman's motion in accordance with the standards applicable to motions under 28 U.S.C. § 1292(b) only.
Section 1292(b) provides as follows:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, she shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days of the entry of the order.In order to establish that an interlocutory appeal is appropriate, a party seeking to appeal an order must establish (1) that the order involves a controlling legal question, (2) that substantial ground for difference of opinion exists, and (3) that a determination of the question by the Court of Appeals would materially advance the litigation in the district court. See In re Baker & Getty Financial Services, Inc., 954 F.2d 1169, 1172 (6th Cir. 1992). [*4] A strong federal policy exists against the piecemeal litigation permitted by interlocutory appeals. See Pacific Union Conference of

2005 U.S. Dist. LEXIS 13010, *4

Page 2 of 2

Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1309, by the Court of Appeals would not materially advance this

54 L. Ed. 2d 17, 98 S. Ct. 2 (1977).

litigation. Accordingly, Mr. Bruggeman's motion to certify

the issue for interlocutory appeal (Doc. 61) is hereby

The Court is persuaded that the first prerequisite for DENIED.

certification is satisfied. The issue upon which the Court ruled

in its April 18 Order is a controlling issue of law. The Court is IT IS SO ORDERED.

not persuaded that the second requirement is satisfied. The

Court's analysis is based upon settled law. The Court remains June 30, 2005

unpersuaded that Mr. Bruggeman has a right that is subject to impairment or impediment as a result of this action. He is not Sandra S. Beckwith, Chief Judge

entitled to intervene as of right in this action. Moreover, the

resolution of the issue

United States District Court

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

:

:

RODNEY FUSSELL, GARY

:

ROBERTS, and JAMES LOVE

:

:

Plaintiffs,

:

: Case No. C-1-03-704 (SSB)

:

: STIPULATION FOR

vs.

: INJUNCTIVE

: RELIEF

:

:

REGINALD WILKINSON, KAY

:

NORTHRUP, BRUCE MARTIN,

:

PEDRO OBREGON, MONA

:

PARKS, VICKI WARE, JAMES

:

MCWEENEY, and CINDY LAWSON :

:

Defendants.

:

:

STIPULATION FOR INJUNCTIVE RELIEF FUSSELL V. WILKINSON, Case No. C-1-03-704 (SSB)
TABLE OF CONTENTS
Table of Contents.............................................................................................................................. i,ii,iii A. General Provisions ............................................................................................................................ 1 B. Glossary of Terms ............................................................................................................................. 2 C. Scope.................................................................................................................................................. 5 D. General Principles............................................................................................................................. 5 E. Cost Savings Projects ........................................................................................................................ 6 F. Level of Care...................................................................................................................................... 7 G. Policies & Procedures ....................................................................................................................... 7 H. Medical Staffing: Physicians............................................................................................................. 9 I. Medical Staffing: Nurses, Ancillary & Support................................................................................. 9 J. Presumptive Acceptability of Agree Upon Staffing......................................................................... 10 K. Staff Implementation ...................................................................................................................... 10 L. Training........................................................................................................................................... 11 M. Orientation on Access to Care........................................................................................................ 11 N. Medical Reception and Screening................................................................................................... 12 O. Health Assessments......................................................................................................................... 12 P. Transfer Screening .......................................................................................................................... 13 Q. Chronic Illness Care ....................................................................................................................... 13 R. Consultations (Referrals) ................................................................................................................ 14 S. Medication ....................................................................................................................................... 15 T. Consent............................................................................................................................................ 15 U. Urgent (Emergency) Services.......................................................................................................... 16
i

V. Sick Call .......................................................................................................................................... 16 W. Infectious Diseases.......................................................................................................................... 17 X. Infection Control Program ............................................................................................................. 17 Y. Infirmary......................................................................................................................................... 18 Z. Medical Equipment ......................................................................................................................... 18 AA. Medical Records ........................................................................................................................... 19 BB. Mortality Reviews......................................................................................................................... 19 CC. Credentialing................................................................................................................................ 20 DD. Physician Leadership & Monitoring........................................................................................... 21 EE. Special Populations: Older & Younger Inmates, Females, OSP................................................. 21 FF. Dental ............................................................................................................................................ 22 GG. Grievance ...................................................................................................................................... 23 HH. Emergency Response Plan ........................................................................................................... 23 II. Privacy ............................................................................................................................................ 24 JJ. Diet ................................................................................................................................................. 24 KK. Discharge Planning ...................................................................................................................... 25 LL. CoPay............................................................................................................................................ 25 MM. Stipulation Oversight.................................................................................................................. 25 NN. Dispute Resolution........................................................................................................................ 29 OO. Compliance and Termination ...................................................................................................... 30 PP. Stipulation Emergencies................................................................................................................ 30 QQ. Stipulation Modification .............................................................................................................. 31 RR. Enforcement ................................................................................................................................. 31 SS. Miscellaneous Provisions ............................................................................................................... 31 TT. Attorneys’ Fees ............................................................................................................................. 33 UU. Construction of Stipulation .......................................................................................................... 33 VV. Individual Class Representative Relief ........................................................................................ 33
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Appendix A. Phase 1 – Staff added by title and site.............................................................................. iv Appendix B. Phase 2 – Staff added by title and site ............................................................................... v Appendix C. Phase 3 – Staff added by title and site.............................................................................. vi Appendix D. Phase 4 – Staff added by title and site............................................................................. vii Appendix E. DRC Facility and Staffing Legend ................................................................................. viii
iii

A. General Provisions 1. This Stipulated Judgment is entered into by the parties to resolve all of the claims made in this action, wherein the Plaintiffs Rodney Fussell, Gary Roberts, and James Love, bring a number of claims on behalf of the class of all Ohio inmates, relating to the medical care they are all receiving from Defendants, who are employees of the Ohio Department of Rehabilitation and Corrections ("ODRC") or who are under contract. 2. This action was filed by Plaintiffs on October 14, 2003. The action alleged that the Plaintiffs are not receiving medical care which comports with the Eighth Amendment to the United States Constitution and which also varies from specified federal statutory law. On January 23, 2004, the court entered an Order certifying this case as a class action and naming Alphonse A. Gerhardstein and David Singleton, of the Ohio Justice and Policy Center (formerly known as the “Prison Reform Advocacy Center”), as class counsel. On April 2, 2004, the parties agreed to a fact-finding process whereby a jointly approved Medical Investigation Team (MIT), comprised of medical and legal experts in the area of correctional health care, would conduct a thorough, factual investigation of the medical services provided by the Defendants. On January 26, 2005, the MIT, headed by Fred Cohen, Esq., completed its work and issued a comprehensive Report detailing its findings and the factual basis for such findings. On March 10, 2005, the parties accepted the Report’s findings and those findings are hereby incorporated herein. The Report served as the basis for extensive, informal negotiations that followed. 3. By entering into this Stipulation, the Defendants do not waive, and are not authorized to waive, the sovereign immunity of the State of Ohio, or the State's immunity from suit guaranteed by the Eleventh Amendment.
1

4. The parties have conducted extensive informal negotiations since the filing of the MIT Report. These negotiations have included the parties as well as legal and medical experts in correctional health care. These negotiations have been undertaken in good faith and at arm’s length allowing the parties to reach agreement on the procedures and substantive criteria the parties will follow for ensuring the delivery of constitutionally adequate medical services. The parties freely and voluntarily, and with the advice of counsel, enter into this Stipulated Judgment for that purpose. WHEREAS, a dispute exists between the parties as to the extent to which the Defendants’ provision of medical care to inmates housed in facilities under the authority of ODRC meets constitutionally mandated, minimum standards; WHEREAS, this dispute culminated in Plaintiffs filing this statewide, medical class action; WHEREAS, the Defendants agree to use their best efforts to obtain the necessary funding to improve the medical care system and to otherwise comply with the standards of care included in this Stipulation; and, WHEREAS, this Stipulation is narrowly drawn to meet those standards, the following terms and conditions are to serve as the basis for the injunctive relief encompassed herein.
B. Glossary of Terms 5. Chronic Illness. A “chronic illness” is one that affects a person’s well being for an extended time, usually at least six (6) months, which is not usually curable but may be managed to optimize functioning. 6. Cluster System. “Cluster system” refers to the grouping of designated facilities for the purpose of sharing expressly described staff, services, and physical facilities. The “cluster system” in use for mental health services is referenced only by way of example.
2

7. Health Assessment. A “health assessment” is performed by medical staff to fully evaluate the health status of an individual and to create a plan for meeting the individual’s health needs. 8. Infirmary. “Infirmary care” is care provided to patients whose diagnosis requires daily monitoring, medication, therapy, or assistance with activities of daily living requiring skilled nursing assistance. Infirmary care is less than hospital care and beyond what can be done in an outpatient setting. 9. Medical and Dental Care. Should the term “medical care” appear by itself in this document and it is evident that dental care also was intended to be included, then “medical care” also shall include “dental care.” 10. Medical Records. The “medical record” is the complete documentation (including notations in electronic format, if any), of all the health encounters of an individual inmate and is designed to document medical care, facilitate communication among various care providers, and facilitate continuity of care. 11. Medical Screening. “Medical screening” is the immediate and general process designed to detect the need for early medical attention or the accelerated need for the more comprehensive health assessment. 12. Policy and Procedure. “Policy and Procedure” refers to a properly adopted and promulgated written set of administrative rules governing the goals, objectives, and standard operating procedures for the provision of correctional medical care. “Protocols” shall be considered within the meaning of “policy and procedure.” 13. Primary Care. “Primary care” is that care provided by physicians specifically trained for and skilled in comprehensive first contact and continuing care for persons with any undiagnosed
3

sign, symptom, or health concern (the "undifferentiated" patient) not limited by problem origin (biological, behavioral, or social), organ system, or diagnosis. Primary care includes health promotion, disease prevention, health maintenance, counseling, patient education, diagnosis and treatment of acute and chronic. Primary care is performed and managed by an assigned physician who often collaborates with other health professionals, and uses consultation or referral as medical judgment dictates. 14. Primary Care Physician. “Primary care” physician is a specially trained, generalist physician who provides definitive care to the undifferentiated patient at the point of first contact and takes continuing responsibility for providing the patient’s care. 15. Special Needs Population. “Special Needs Population,” as used herein, refers to persons in custody whose inherent characteristics, (e.g., age, diagnosis) or readily observed physical conditions, (e.g., amputee) indicates the need for specialized housing or medically-related care including such things as exercise, diet, special medical examinations, and the like. 16. Staffing Terminology. (1) “Medical staff” shall mean licensed physicians, licensed physician’s assistants, nurse practitioners, and licensed nurses. (2) “Ancillary medical staff” shall mean x-ray technicians, phlebotomists, podiatrists, optometrists, pharmacists, and aides. (3) “Support staff” shall include medical records personnel and secretarial/clerical personnel. 17. Urgent Care. “Urgent care” is medical or dental care for an acute illness or unexpected health need that cannot be delayed until regularly scheduled opportunities to receive medical care. 18. Effective Date. The "effective date" of this Stipulation is the date the court approves the Order for Injunctive Relief.
4

C. Scope 19. This Stipulation encompasses all inmates with serious medical and dental needs who are or will be incarcerated in prisons operated by or under the jurisdiction of the Ohio Department of Rehabilitation and Correction (ODRC). The serious medical and dental needs of the class are those that obviously require medical or dental attention, conditions that significantly affect an individual’s daily life activities, or conditions that cause preventable pain, notable discomfort or a threat to health.
D. General Principles 20. All persons in the custody of ODRC have a right of unimpeded access to a continuum of health and dental care services to insure that their medical and dental health care needs are met in a timely, professionally acceptable, dignified and efficient manner. 21. The foundation of the ODRC medical and dental system shall be timely access to needed care provided by appropriately trained, credentialed, and licensed personnel in a setting designed for the particular care. 22. The parties agree that many inmates reach ODRC with a health status well below that prevalent in the open society. ODRC gradually will provide medical and dental care in a manner that enhances the autonomy and responsibility of the inmate in achieving and maintaining better health. To that end, there shall be an ongoing program of health education, wellness information, healthy diets, healthy food choices in the commissary, and similar measures. 23. Recognizing that tobacco use and second-hand smoke are major causes of death and disability, ODRC will undertake special measures of education and accommodation of nonsmokers with the ultimate goal of achieving a totally tobacco-free internal environment and will use its best efforts to obtain funds from the “tobacco settlement” as an aid to achieving this goal.
5

24. The parties agree that due to the abbreviated timeframe for the fact-finding, additional fact-finding and agreement on remedies will be described hereafter in the Stipulation and will be undertaken at various times after the effective date of the Stipulation.
E. Cost Savings Projects 25. The parties agree that certain measures designed to improve health care are likely also to result in significant, although not necessarily, immediate cost savings. Such measures include:
i. Bed utilization study and monitoring of the use of the facilities at the Ohio State University Hospital (OSU), Frazier, and the Correctional Medical Center where preliminary findings suggest there are now significantly longer stays than are medically required.
ii. Utilization of medical records specialists and technicians in lieu of far more expensive nursing staff who may then enlarge the scope of their patient care.
iii. Reassessment of the entire medication system from supply source and cost of medication to strategies to review and possibly reduce the number of prescriptions.
iv. Use of some version of the cluster system currently used by mental health for those medical services and staff that may be shared efficiently and in a professionally acceptable fashion. Examples include medical records staff, infirmary space, certain dental procedures and the like.
v. Restructuring of the contract and contracting process for physicians to require more oversight and accountability using in part, patient outcome measures to be fashioned by ODRC, Plaintiffs, and the MOC; to enhance care by emphasizing timely, quality contacts and care; to strengthen the leadership 6

role of Central Office and enhance the physician’s knowledge of P & P and personal commitment to the patient. 26. It is agreed by the parties that whether to deliver services through civil service, private providers, contract workers, or through a cluster system is in the sole discretion of ODRC. The parties agree that whatever service delivery model is utilized, the terms of this agreement will apply and control any individual or collective agreements with such providers.
F. Level of Care 27. Medical and dental services are to be provided at a level within the framework of the Eighth Amendment and reasonably consistent with generally accepted medical science and of a quality acceptable within prudent professional standards. Where a range of acceptable treatments are available, the inmate-patient has no right to any particular treatment, to any particular caregiver, or to change any particular location for treatment deemed appropriate by the health care provider.
G. Policies & Procedures 28. All existing medical and dental Policies and Procedures (P&P) will be reviewed and revised as needed. The P&P will be designed to meet or exceed the minimum level of medical care required by the Eighth Amendment. However, it is the intent of this Stipulation to require Defendants to provide only the minimum level of medical and dental care required by the Eighth Amendment. The initial undertaking shall be initiated by ODRC officials working with members of the Medical Oversight Committee (MOC) and subject to review by class counsel. 29. The review and revision should be completed within a nine (9)-month period commencing with adoption of this Stipulation. Upon completion, the process of formal adoption and implementation by ODRC shall begin.
7

30. Following formal adoption, ODRC agrees to launch a training program designed to familiarize all medical and dental personnel with the P & P. To the extent possible, training on the revised P & P shall occur prior to implementation. 31. Training of officers shall be included in the annual in-service training and shall emphasize those aspects of the P & P specific to their role including emergency responses, referral procedures, first aid, recognizing certain signs and symptoms that necessitate an emergency response, dealing with infectious diseases and CPR. All ODRC training programs shall include provisions for testing those completing the training programs. 32. Implementation of the revised P & P shall be deemed to begin after formal adoption and the date when the actual practice thereunder is to begin. 33. Medical P & P shall be general and system-wide as well as site specific. Site-specific measures are deemed particularly important at facilities with a special medical mission (e.g., CMC, Frazier, and Hocking), and with a “special needs population” (e.g., ORW, Madison (juveniles)). 34. Site-specific measures may not be inconsistent with the system-wide P & P. 35. Each P & P shall be reviewed initially, and revised as needed, by the health care authority and such review shall be documented in a designated file. The review shall not be pro forma and documentation will identify the participants, time spent, basis for the review, and the rationale for each change to be made and for the continuation of existing provisions left without change. 36. During the tenure of the MOC there shall be a written summary of subsequent reviews following the same criteria noted above for the initial, overall review. 37. This section requires overall review and revision of P & P and subsequent sections will contain more specific principles or content for particular areas.
8

H. Medical Staffing: Physicians 38. The parties agree that ODRC initially will provide one full-time equivalent (FTE) physician per 900 inmates as the baseline for the entire ODRC inmate population. The parties further agree that institutions housing higher acuity patients will require more physicians per inmate than the 1 FTE physician per 900 inmates baseline. The system-wide distribution of physicians shall be at the discretion of ODRC taking into account security level, special mission, and special characteristics of the inmate population. The FTE calculation involves direct patient care and shall not include the medical director or any other central office physicians. ODRC agrees to provide the agreed upon physicians in a gradually phased-in process over a two-year period dating from the finalization of this Stipulation. See Appendix B, attached hereto. 39. Whether the provision of physicians is through private or civil service providers, or any mix thereof, shall be determined in the unreviewable discretion of ODRC. 40. To the extent feasible, ODRC agrees to fill each FTE physician position with a single physician. Where this is not possible, the FTE shall be accomplished with no more than two physicians. 41. In extraordinary circumstances ODRC may ask the MOC for a waiver of the “two physicians per FTE” requirement and supply a full statement of reasons therefore. Class counsel shall be informed and have an opportunity to be heard regarding any such requests and will be informed regarding the disposition thereof.
I. Medical Staffing: Nurses, Ancillary & Support 42. The parties agree that all medical staffing shall be done in a series of four phases, each phase being twelve (12) months, with Phase 1 to begin with the court’s approval of this Stipulation. Appendices A, B, C, and D attached hereto, and incorporated into this Stipulation,
9

represent the agreement of the parties as to the specific staff to be added for each facility and in accordance with the agreed upon four phases. 43. The four-year total for the medical staff to be added during that period is two hundred and ninety-six (296) positions, each position being described in the Appendices. 44. The parties agree that the agreed upon total number of physicians will all be added by the end of Phase 2. At the end of Phase 2 there are to be fifty-two and one-half (52.5) FTE positions filled. This represents an additional twenty-plus (20+) FTE physicians. 45. At the end of Phase 4 there will be four hundred and ten (410) Nurse I and Nurse II’s (i.e., RN’s), and one-hundred and forty-six (146) LPN’s, a total of five-hundred and fifty-six (556) such positions filled. 46. This represents an additional fifty-four RN’s and an additional seventy-nine (79) LPN’s.
J. Presumptive Acceptability of Agreed Upon Staffing 47. The parties agree that the total medical staffing agreed upon, as described above and in the Appendices, are presumptively acceptable as the means to achieve the goals of this Stipulation. The MOC, in its oversight of this Stipulation, shall specifically address staffing in its various reports and should the MOC conclude that any additional medical staffing is required, the Defendants may request additional facts and reasoning for the proposed staffing change. 48. If the Defendants do not agree that the presumption of adequacy has been overcome then the parties agree to resolve any such dispute in accordance with Stipulated Judgment, Sec. NN “Dispute Resolution.”
K. Staff Implementation 49. The parties agree that medical, ancillary medical, and support staff will be retained and placed in a coordinated fashion. With the exception of physicians and medical records staff,
10

agreed upon staffing shall be implemented in four phases as more fully described in Appendices A, B, C, and D. Physicians will be hired during Phase 1 and completed by the end of Phase 2. 50. Medical records staff for all institutions will be hired during the initial phase of the Stipulation, when all agreed upon staffing is put in place at the Category I institutions 51. The intent of this provision is to put in place for each grouping a medically viable team with the requisite training on P&P, support, equipment, and physical facilities as opposed to autonomous and uncoordinated undertakings.
L. Training 52. All health care staff shall participate annually in continuing education appropriate for their licensure. Such training generally shall consist of at least twelve (12) hours annually and may be conducted on a regional basis. All ODRC training shall include assessment of whether the trainee has learned the material. 53. Working knowledge of the P & P and advances made in the participant’s area of practice shall be minimum requirements 54. During the life of this Stipulation the training material shall include an explanation of this lawsuit, the obligations incurred by this Stipulation, and the legal framework and principles governing this Stipulation.
M. Orientation on Access to Care 55. Upon arrival at the facility, whether initial entry or an inter-facility transfer, all inmates shall be informed, orally and in writing, about how to access health care services and the medical grievance system. This shall be done in a language the inmate understands and at a communicative level easily grasped.
11

56. Oversight shall include asking randomly selected, newly arrived inmates questions about their knowledge of gaining access to care and the grievance system and documenting the results in the MOC reports.
N. Medical Reception and Screening 57. Reception screening shall be performed on all inmates immediately upon their arrival at the reception facility. The goals are to identify inmates’ medical conditions and needs; establish a baseline for continuity; identify those in need of chronic care; and initiate the development of a treatment plan that is age and gender specific. 58. The parties agree that this must be a unified process with as much existing medically relevant information available as possible at the time of reception screening. Inmates arrive at ODRC reception facilities too often without medically relevant information possessed by the jail authority. Defendants will propose rules amending the jail standards so that local jails shall be required to forward such information as a condition of ODRC’s acceptance of such inmates. 59. The P & P on point should include the factors listed at ACA, Standards for Adult Correctional Institutions, Section 4-4362 (4th ed., July 1, 2003)(Hereafter, ACA Standards). 60. When a referral for emergent care is clinically indicated, inmates’ access to the appropriate care shall be immediate. Access to further evaluation shall be in a timely manner indicated by the nature of the referral.
O. Health Assessments 61. Initial. Within seven (7) calendar days after an inmate initially arrives at a reception facility an initial health assessment, including a comprehensive physical examination, shall be completed in accordance with the relevant P & P. This process is to evaluate the health status of the inmate in accordance with the examining physician’s best medical judgment. These
12

evaluations will be conducted in clinical settings with adequate space, lighting, medical equipment and supplies, and adequate access to hand-washing facilities. 62. Periodic. Each inmate shall be regularly reassessed (including, when appropriate a comprehensive physical examination) with the age, gender, and specific health needs of the inmate determinative of the frequency and scope of such reassessments.
P. Transfer Screening 63. All inmates transferred from one facility to another shall have a health screening by a qualified medical staff member within twelve (12) hours of arrival. No intra-system transfer shall occur until the responsible officers at the sending facility ascertain and record that the appropriate medical information, including a transfer summary and the medical record itself, will accompany the inmate. The Defendants shall develop a procedure protective of the confidentiality of the medical records while also ensuring the inclusion of the requisite medical record. The MOC shall review and ultimately accept the procedure referenced here. 64. The purpose of such screening is to ensure continuity of care with respect to medications, chronic illness care, specialty services, other necessary medical care, and the avoidance of needlessly repetitive testing.
Q. Chronic Illness Care 65. Goals. The P & P will be revised to reflect as the goals for the chronic disease program the identification of patients with such diseases; an appropriate and regularly revised treatment plan; physician contact scheduled based on the severity of the illness or the patient’s control of the disease; laboratory tests scheduled and completed in coordination with the physician visit, and the physician contact (or visit) fully documented and consistent with good clinical practice.
Coverage. The P & P will include, but not necessarily be limited to: 13

i. Asthma; ii. Diabetes; iii. High blood cholesterol; iv. HIV; v. Cardiac/Hypertension; vi. Seizure disorder; and vii. Tuberculosis viii. General Medicine (e.g., thyroid and autoimmune disorders) 66. Standards Reference. The parties agree that in the formulation of the P & P in this area, reference shall be made to the National Commission on Correctional Health Care’s (NCCHC) most recent standards on point and other recognized expert panels and organizations such as the Centers for Disease Control and Prevention (CDC). In the event that the P & P in this area is silent on a particular issue the relevant NCCHC standard shall presumptively govern the matter.
R. Consultations (Referrals) 67. The parties agree that a certain number of inmates will require timely access to medical specialists. P & P must be designed to require timely scheduling; minimize cancellations; assure the timely flow and utilization of information from the sending and receiving entities; that the primary care physician has the primary responsibility for the referral and for the care required post-referral; that records are complete, timely and properly utilized; and that the inmate-patient is informed about every step of the process. 68. Quality assurance follow-up shall include monitoring the efficacy of the referral and physician follow-up, an assessment of the proper utilization of hospital bed space for such
14

referrals, the physicians’ assumption of the primary role in this process, and other relevant P & P requirements. 69. The parties agree that not all inmates need to be fully restrained while celled at CMC for consultations. ODRC agrees to complete a study of alternative ways to meet its security needs in this setting and then consult with Plaintiffs and the MOC on a satisfactory solution.
S. Medication 70. Medication is to be prescribed only by staff licensed to do so. Inmates must receive their medication in a timely fashion and this must be promptly documented on the health care record. 71. Medication services, including dispensation and the pharmaceutical operation, must be clinically appropriate and provided in a timely, safe, and sufficient manner. Privacy as to distribution shall be maximized to the extent physically and operationally possible. 72. ODRC will undertake a study of medication compliance in chronic care clinic designed to establish various compliance rates and determine how to improve such rates. Simultaneously, there shall be a study of the acceptability of areas used to store and/or dispense medication to determine safety, sanitation and security. 73. The NCCHC Standards on pharmaceutical operations (P-D-01) and medication services (P-D-02), as well as pages 26-29 of the MIT report, shall be referred to for guidance in the revision of the P & P.
T. Consent 74. Inmates have the right to receive from a physician the material facts about the nature, consequences, and risks of any proposed treatment, examination, or procedure as well as any alternatives and the prognosis if the undertaking is not agreed to.
15

75. With informed consent the inmate may refuse a health examination or treatment unless loss of life or the threat of serious and irreversible harm is imminent and appropriate policy and procedure is followed. 76. P & P shall address all aspects of consent including when consent by a third-party may, or must, be obtained and when a medical emergency may excuse the need for initial informed consent.
U. Urgent (Emergency) Services 77. ODRC will continue to provide access to twenty-four (24)-hour emergency medical and dental services from all of its facilities. 78. ODRC will study, and improve where needed, the emergency care training of correctional officers, including CPR. ODRC will pursue all steps necessary to require that all officers administer CPR when the need arises. 79. ODRC will ensure that each facility has appropriate and functioning emergency equipment and will assure the ready availability of automated external defibrillators at each facility.
V. Sick Call 80. Sick call is the mechanism by which inmates may access health care services. The function of sick call is the timely evaluation and treatment of ambulatory patients in a clinical setting by an appropriately trained health care professional. 81. Review and revision of the existing P & P and nursing protocols are the necessary first steps. Such revision must encompass timeliness, scheduling issues, criteria for referral, the conduct of the physician after referral, and close monitoring of the process.
16

82. Written requests must be triaged within twenty-four (24) hours by a nurse, and doctor referrals must be timely as dictated by the medical problem.
W. Infectious Diseases 83. Infectious diseases encompassed by this Stipulation include but are not limited to TB infection, Hepatitis C, HIV and Methicillin Resistant Staphylococcus Aureus Infection (MRSA). 84. The parties agree that there is particular urgency to the review and revision of the P & P in this area. The overall goal of such P & P is to provide timely and appropriate measures of care, prevention and intervention. Care shall be enhanced through a comprehensive education and prevention program that includes concern for public health when inmates are released into the community. 85. The parties agree further that every issue of concern raised in the MIT Report, pp. 34-40 shall be addressed and resolved in the revised P & P. 86. ODRC will develop and implement surveillance studies; that is, the routine and orderly collection of information regarding the occurrence of an infectious disease. Data collected in this fashion shall be used to identify endemic rates and high and low risk areas to the overall end of controlling the spread of disease.
X. Infection Control Program 87. ODRC agrees to review its infection control program and implement changes as needed. Such review will be subject to further review by the MOC and Plaintiffs. The objective of such program is to minimize the incidence of infectious and communicable diseases among inmates and staff. 88. The infection control program as implemented will be in compliance with NCCHC Standards, Standard P-B-01, “Infection Control Program.”
17

Y. Infirmary 89. In the discretion of ODRC, infirmary care may be provided at various levels. ODRC hereby agrees in P & P to specify the levels of care to be provided along with appropriate P & P on point. Infirmary care may be for observation as well as treatment. 90. The care provided generally will meet or exceed twenty-four hours and must include having the patient within constant sight or sound of a licensed health care provider who shall be on the premises and in close proximity to the area or areas designated for infirmary care. 91. P & P in this area will be reviewed and revised with particular attention given to medical criteria for placement, requiring nurses to routinely notify the physician to obtain orders such as vital signs, medication, guidance as to what clinical criteria will call for physician renotification, the documentation of physician and nurse encounters, and admission and discharge documentation. 92. ODRC, in collaboration with the MOC, shall conduct a system-wide survey of infirmary physical conditions, sanitation, and utilization. The results of such study shall be shared with class counsel and agreement reached as to necessary (must be done) and desirable (may be done) changes. 93. ODRC agrees to study and report to class counsel and the MOC on desirability of providing some infirmary care and space on a shared-cluster basis using the existing mental health clusters as a point of reference.
Z. Medical Equipment 94. ODRC agrees to perform a thorough survey and inspection of available medical equipment at all of its facilities with priority given to those facilities with special needs
18

populations. The resulting report shall be submitted to class counsel and the MOC for review and acceptance. 95. The NCCHC P-D-03 “Clinic Space, Equipment and Supplies” for determining the standards for this area is hereby incorporated into this Stipulation
AA. Medical Records 96. Existing P & P concerning medical records shall be reviewed and revised accordingly with a focus on standardized forms; timely, legible and accessible entries; provisions for confidentiality, transfer and retention. 97. ODRC agrees to improve on the timeliness in retrieving and filing of various laboratory and consultant reports given the serious and systemic problems described in the MIT Report. The changes shall be reviewed and subject to oversight by the MOC. 98. The problems in this area are such that revision and review shall be among the first areas of change.
BB. Mortality Reviews 99. The parties agree that the ultimate goal of the mortality review process is to identify those aspects of the medical care delivery system that may be improved. ODRC agrees to undertake the training of those medical personnel who will conduct and/or participate in such reviews. Mortality reviews shall not be led by physicians involved in the care of the deceased although, such physicians may be called upon to participate in such reviews. 100. P & P shall be reviewed, revised, and consistently enforced recognizing that this is an important aspect of the medical quality assurance program. The P & P shall encompass:
The uniform collection of individualized mortality information The inclusion of autopsy reports
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The maintenance and tracking of mortality data using statistical measures that allow for comparison with local and national death rates and with other correctional systems Written P & P that direct the mortality review process An established mortality review committee that functions under the auspices of the quality improvement and assurance program An ongoing process that monitors the implementation of recommendations for improvement made by the mortality review committee and ongoing compliance with these recommendations
CC. Credentialing 101. ODRC agrees to continue to utilize only those physicians who are currently licensed by the State of Ohio to practice medicine in that state. The Office of Health Care agrees to review licensure annually. 102. The parties agree that physicians who practice in the area of primary care shall have a residency in primary care subject to waiver based on extensive primary care experience upon review by the Office of Health Care. Physicians who practice at a facility with a special medical mission such as CMC, Hocking, and Frazier, must be board certified as to primary care subject to waiver based on extensive primary care experience upon review by the Office of Health Care. Defendants agree to develop with the MOC Policies and Protocols regarding residency and board certification requirements for institutional physicians including what experience will be acceptable in lieu of such certifications.
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DD. Physician Leadership & Monitoring 103. The parties agree that it is essential to establish physician leadership in the provision of medical care and that Central Office will establish a physician-led medical monitoring program as soon as possible but not later than twelve (12) months from the date of this Stipulation. 104. The Central Office medical monitoring team will serve as the vanguard for the overall quality assurance program of the Department. ODRC, in collaboration with the MOC, will develop a clinical monitoring and quality improvement policy for the team. The team’s responsibilities will include establishing and maintaining a consistent presence in the field through regular visits by officials, conferences, training, and the like. The team’s responsibilities will also include, but not necessarily be limited to, providing leadership for institutional continuing quality improvement efforts, and the regular review of data on inmate hospitalization rates, grievances, and other indicia of quality of care. 105. ODRC agrees to prepare a written plan of action regarding the Central Office medical monitoring program and provide it to class counsel and the MOC within six (6) months of the effective date of this Stipulation. The parties agree to engage in good faith negotiations to achieve an agreement regarding the Central Office medical monitoring program.
EE. Special Populations: Older & Younger Inmates, Females, OSP 106. The parties agree that further study must be given to older (over age 55) inmates, juveniles (18 or under), females, and inmates confined at the Ohio State Penitentiary (OSP) as well as inmates held in disciplinary segregation. 107. Each group presents a series of different medically related challenges ranging from diets to pap smears to preventive dental care. ODRC agrees to study and report on each group’s
21

special medical needs and to present such report within twelve (12) months of the date of this Stipulation to class counsel and the MOC. 108. P & P will then be designed and implemented to fulfill the agreed upon special medically related needs of each group.
FF. Dental 109. The parties hereby agree to incorporate within this Stipulation the “Report: ODRCDental Services” by the MIT dated January 26, 2005. 110. In addition, ODRC will review all of its dental P & P and revise as needed subject to review by class counsel and the MOC. The basic goals of the dental program to be expressed and implemented through P & P are to identify dental problems at intake and then provide relief from pain, eliminate infection and disease, restore functioning, and provide preventive information and opportunity. 111. The P & P will categorize emergency/urgent care, interceptive care (i.e., early treatment for emergent conditions), corrective care (i.e., restoration, extraction, long-term management), and any elective care to be made available. 112. The parties shall identify and agree upon an expert, or experts, in correctional dental care who shall perform an in-depth study of the existing dental program, identify areas of need, and make recommendations. Such expert, or experts, shall perform this work with the cooperation of ODRC and the MOC. 113. The expert, or experts, shall be selected within two (2) months of the date of this Stipulation and complete the study nine (9) months after its initiation. The parties will then reach agreement on the implementation of the recommendations with the MOC’s review decision being presumptively valid. When such agreement is reached, the area of need and
22

recommendations for implementation shall be incorporated into this Stipulation and become binding and enforceable in the same fashion as all other provisions contained herein.
GG. Grievance 114. The existing P & P on grievances have been reviewed and the parties agree that a grievance system for inmates’ complaints about medical care is an essential component of the medical care system and inmates are entitled to reasonable access to the grievance mechanism, a timely and individualized response, freedom from retaliation for grieving and reasonable access to appeal. ODRC agrees to hire an additional assistant chief inspector who shall be a registered nurse and who will review only medical, mental health, and dental grievances and perform such other related tasks as are assigned. 115. The grievance mechanism shall be considered an important aspect of the quality assurance program and designed to so function.
HH. Emergency Response Plan 116. The parties agree that the health aspects of a facility’s emergency response plan must be clearly articulated in the P & P and there must be regular mass disaster and “man down” drills.
In the review and revision, the applicable P & P must include: i. responsibilities of correctional and health care staff; ii. procedures for triage; iii. predetermination of the site for care; iv. telephone numbers and procedures for calling health staff and the community emergency response system (e.g., hospitals, ambulances); v. procedures for evacuating patients; and, vi. alternate backups for each plan’s elements 23

II. Privacy 117. All clinical encounters are to be conducted in such place and in such manner as to maximize the inmates’ right to privacy. Security staff may be present only if the inmate poses a well-founded and demonstrable threat to the safety of the health care provider or others. 118. When a security staff member’s presence is required, then such presence will be at the furthest physical and auditory location consistent with the nature of the threat and the staff member will be instructed on confidentiality. 119. P & P will assure the confidentiality of the patient’s written or electronic health care record; that health records are securely maintained; that access to such records is controlled by the health authority; that records are sealed during transfer; and that staff receives instructions which are regularly reviewed on maintaining patient confidentiality. 120. Breaches in patient confidentiality shall be subject to disciplinary sanction and, when appropriate, referral to outside authorities for appropriate action.
JJ. Diet 121. Inmates have a right to receive medically ordered diets, and when such ordered diets are willfully ignored disciplinary action is appropriate. ODRC will immediately take the steps necessary to assure the regular provision of such diets and report on those steps to the MOC for review. 122. In addition to medically required diets, ODRC shall undertake generally to provide healthier diets, both in the regular food service and in the commissary, consistent with the General Principles (Section G., supra). Within nine (9) months of the date of this Stipulation a registered or licensed dietician will have prepared system-wide diets that incorporate the
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principles in the U.S. Department of Agriculture and the Department of Health and Human Services’ “Food Guide Pyramid,” and also meet age appropriate dietary allowances.
KK. Discharge Planning 123. The parties agree that re-entry planning should begin early in the inmate’s confinement and follow the released inmate into the community. At a minimum, discharge planning shall include an appropriate allowance of needed medication and providing the releasee with appropriate guidance concerning health services in the community. 124. P & P on point shall be reviewed and expanded as needed to encompass the above points. NCCHC Standards, Sec. P-E-13 shall serve as guidance in this area.
LL. CoPay 125. The parties agree to undertake revisions of the co-pay P & P directed at ensuring that inmates are not discouraged from seeking needed care; that the list of co-pay-exempt medical conditions is not overly narrow; that the indigency criteria for exemption be refined and expanded; that inmates are not charged co-pays for follow-up or re-scheduled appointments; that other plaintiff concerns identified in the course of the revisions are addressed as appropriate.
M. Stipulation Oversight 126. Fred Cohen, L.L.B., L.L.M., Professor Emeritus of the School of Criminal Justice, S.U.N.Y at Albany, is hereby appointed as Independent Consultant (I.C.) and head of the MOC, which is hereby constituted to serve as consultants to provide oversight of the provisions of this Stipulation. 127. Professor Cohen will retain as the professional staff of the MOC, the four present members of the MIT (Ronald Shansky, M.D.; Mike Puisis, D.O.; Madie LaMarre, MN, A.P.R.N., B.C.; and Barbara Peterson, R.N.), a qualified dentist agreed to by the parties, and any
25

other staff required to conduct the oversight. The Defendants agree to pay for all agreed-upon costs associated with said oversight. 128. The I.C. agrees to submit to counsel for both parties the curriculum vitae of any additional proposed clinical and administrative experts and to seek their advice and consultation prior to their retention. 129. In the normal course of medical site visits by the MOC the team will consist of the I.C., one physician and one nurse. The existing MIT experts will make medical site visits and perform other functions on a rotating basis as scheduled by the I.C. Site visits for dental oversight may be conducted jointly with medical site visits or independently as determined by the I.C. 130. Should the Defendants during the life of this Stipulation deny to the I.C. any request of his relating either to the budget or staff required for the oversight, the Defendants shall notify the Plaintiffs’ counsel in writing of such denial and provide a brief explanation of the reason for the denial. 131. The I.C. and any experts or other staff, full- or part-time who are retained hereunder in connection with the oversight function shall contract for their services directly with ODRC and shall in all relevant respects be governed by existing ODRC rules and regulations regarding such employment; and especially relating to compensation and expenses. 132. The general principles for such oversight include:
i. The reporting and on-site aspects of the oversight shall be more intensive at the outset and likely decrease as compliance is neared and achieved;
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ii. Oversight shall consist of a combination of empirical data, written reports from the Defendants, on-site inspections, oral and written reports from the I.C., and appropriate consultation in aid of compliance;
iii. The I.C.’s role shall include the gathering of appropriate data and statistics and on-site inspections as well as the general duty of assuring that required P & P are prepared in a timely fashion and meet the objectives of this Stipulation; and where disputes between the parties occur or where there appears to be non-compliance, the I.C. shall attempt to resolve such matters in the most expeditious and nonadversarial fashion possible; and
iv. Minimizing interference with the mission of ODRC, or any other state agency involved, while at the same time having timely and complete access to all relevant files, reports, memoranda, or other relevant documents within the control of the Defendants or subject to access by the Defendants; having unobstructed access during announced and unannounced on-site tours and inspections to the institutions encompassed by this Stipulation as well as any administrative offices; having unobstructed access to staff and inmates and other persons having information relevant to the implementation of this Stipulation; and having the authority to engage in private conversation with any party hereto and their counsel.
133. A review of records by any member of the MOC shall not constitute a waiver of ODRC’s or any other agency’s quality assurance privilege. Moreover, any such disclosures shall not constitute a waiver or serve as precedent for other legal proceedings with respect to the aforementioned quality assurance privilege. In addition, the MOC agree to keep said
27

documentation confidential and not to disclose, publish or use for public consumption any of the records reviewed by the MOC. 134. In addition to the quality assurance privileges described above, other records or information whose disclosure is objected to by either party based on a claim of privilege, confidentiality, or relevance to the implementation of this Stipulation shall not be disclosed by the I.C. Such material shall be made available for inspection by the Court, along with a precise statement of the objection or objections to disclosure prepared by the objecting party, and the Court shall render a decision on the matter. 135. In conjunction with the overall revision of the P & P, the MOC, in consultation with Central Office staff, will prepare an audit instrument to be used as a guide during site visits. Counsel for the parties will be asked to review and comment on the instrument whose primary objective is to achieve consistency during the site visits. The MOC also will prepare data request forms for Central Office and the various facilities that will be required to submit pre-site visit data to the MOC. 136. The I.C. shall submit an annual comprehensive report on overall compliance to the parties as well as other regular interim reports noting the areas of progress or lack thereof. The annual comprehensive report shall include data on hospitalization rates, inmate complaints, and other indicia of quality of care. 137. In the event that Professor Fred Cohen is unable or unwilling to serve as the I.C., the parties agree to appoint another I.C. 138. The I.C. shall not be subject to dismissal except upon good cause and the agreement of both parties or by the Court upon motion of one of the parties and a showing of good cause.
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139. Oversight shall continue for five (5) years following the entry of this Stipulation unless sooner terminated on motion to the Court by the Defendants, with the concurrence of the I.C., that compliance has been achieved earlier.
NN. Dispute Resolution 140. In the event a dispute arises as to whether Defendants have failed to substantially comply with the terms of this Stipulation, counsel for the parties shall proceed as follows:
i. Counsel for the parties shall make a good faith effort to resolve any difference that may arise between them over matters of compliance utilizing the I.C. initially in an effort to resolve such dispute. Prior to the initiation of any proceeding to enforce the provisions of this Stipulation, Plaintiffs’ counsel shall notify Defendants’ counsel in writing of any claim that Defendants are in violation of any provision of this Stipulation.
ii. Within thirty (30) business days of the receipt of this notice, counsel for Plaintiffs and Defendants shall meet in an attempt to arrive at an amicable resolution of the claim. Either party may request the attendance and involvement of the I.C. at such meeting. If, after twenty (20) business days following such meeting, the matter has not been resolved, Defendants’ counsel and the I.C. shall be so informed by Plaintiffs’ counsel, in writing, and Plaintiffs may then have due recourse to any appropriate legal proceeding or agree that the I.C. may render a final and binding decision.
141. Any complaints by inmates objecting to any provisions encompassed by this Stipulation shall be addressed through institutional grievance procedures under Ohio Administrative Code, Section 5120-9-31. Exhaustion of such institutional grievance procedures through appeal to the
29

chief inspector shall be a condition precedent to any legal action by an inmate. During the pendency of this Stipulation, copies of any such complaints resulting in decisions by the chief inspector and related documents shall be provided on request to Plaintiffs’ counsel and the I.C. on a quarterly basis. 142. No legal action seeking equitable relief relating to the issues resolved herein, including a motion to enforce the terms of this Stipulation, shall be filed on behalf of the Plaintiff class or by a member of the Plaintiff class without first resorting to the dispute resolution mechanisms set out in this Stipulation advising the Defendants of the issue and making a good faith effort to resolve said issue extrajudicially.
OO. Compliance and Termination 143. The parties agree that a five (5) year period is presumptively required to retain, train and oversee the additional medical staff agreed upon in this Stipulation. The parties acknowledge the provision of the P.L.R.A., 18 U.S.C.A. § 3626 (F)(b)(1), making prospective relief terminable two (2) years after a court has approved such prospective relief. 144. Notwithstanding the Prison Litigation Reform Act or any other law, Defendants may move to terminate this Stipulation and dismiss the case on the ground that all institutions subject to this stipulation have been found to be in substantial compliance.
PP. Stipulation Emergencies 145. It may be necessary to temporarily suspend any provision of this Stipulation in the event of an emergency. An emergency is an event which makes compliance with the terms of this Stipulation impracticable, impossible or extraordinarily difficult, and is caused by riot, fire, weather events, natural disasters, warfare, strikes, labor disputes, or similar events, not caused intentionally by the Defendants.
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146. Counsel for Plaintiffs shall be notified of any such emergencies as soon as practicable. QQ. Stipulation Modification
147. The parties recognize that the change of some conditions or practices may reduce the necessity of change of other conditions or practices. The parties also recognize that the Defendants are entitled to substantial deference in their decision on how to improve medical services. Therefore, the parties agree that it may be appropriate that this Stipulation be modified from time to time. After one (1) year of operation under this Stipulation, the Defendants may ask the I.C. to review a proposed modification to any portion of this Stipulation. Defendants shall first present the proposed modification to the Plaintiffs for review and negotiation. 148. The I.C. will submit a written opinion on such proposal to both parties which will bind the parties.
R.R. Enforcement 149. The court shall find that this Stipulation satisfies the requirements of 18 U.S.C.A. § 3626 (a)(1)(A) and shall retain jurisdiction to enforce its terms. The court shall have the power to enforce the Stipulation through specific performance and all other remedies permitted by law. Neither the fact of this Stipulation nor any statements contained herein may be used in any other case or administrative proceeding, except that Defendants reserve the right to use this Stipulation and the language herein to assert issue preclusion and res judicata in other litigation seeking class or systemic relief. When these legal defenses are raised, Defendants will send copies of such complaints to Plaintiffs’ counsel.
SS. Miscellaneous Provisions 150. In entering this Stipulation, the parties agree and represent that this Stipulation is fair, reasonable, and adequate to protect the interests of the class of Ohio inmates and all parties.
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151. This Stipulation is binding upon the Defendants named in this lawsuit, the Defendants' successors in office, employees and agents, and the Plaintiffs. 152. Except where otherwise provided, the Defendants shall be obligated to perform their obligations under this Stipulation upon the date of the filing of the Court's approval of the Order for Injunctive Relief in this matter. 153. The Plaintiffs shall not seek an order of contempt unless and until (1) the Plaintiffs have sought to enforce this Stipulation by filing an appropriate motion with the Court and (2) the Court has issued a clear and unambiguous order of specific performance to the Defendants. 154. Only the Plaintiffs named in this Stipulation shall have standing to file a motion seeking enforcement of any of the terms and conditions of this Stipulation. As class representatives, Plaintiffs can adequately represent the interest of the class of Ohio inmates. This Stipulation does not confer, and is not intended to confer, any rights upon any other party. 155. This Stipulation in no way waives or otherwise affects, limits, or modifies the obligations of inmates to comply with the exhaustion requirements of the Prison Litigation Reform Act, any current or future state or federal law governing the rights and obligations of incarcerated persons, and the Ohio Administrative Code and other applicable policies, procedures, or regulations. 156. The Defendants agree that at the present time they are not aware of any conflict between this Stipulation and the Laws of the State of Ohio or any presently existing collective bargaining agreements to which the State is a party. The Defendant ODRC Officials further agree that they will not seek any new laws or the execution of new collective bargaining agreements, or any changes or amendments to existing laws or collective bargaining agreements that would undermine the obligations taken in this Stipulation.
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TT. Attorneys'Fees 157. Plaintiffs may apply for reasonable attorneys’ fees to which they are entitled. Plaintiffs’ attorney’s fees shall be limited to the hourly rates permitted under the Prison Litigation Reform Act.
UU. Construction of Stipulation 158. This Stipulation reflects the entire agreement of the parties and supersedes any prior written or oral agreements between them. No extrinsic evidence whatsoever may be introduced in any judicial proceeding to provide the meaning or construction of this Stipulation. 159. The language of this Stipulation shall be construed as a whole and in accordance with its fair meaning. 160. The obligations governed by this stipulation are severable and, if for any reason any part of this Stipulation is determined to be invalid or unenforceable, such a determinations shall not affect the remainder.
VV. Individual Class Representative Relief 161. The parties agree that the I.C. will review the facts of each of the class representative's damages claims and propose a resolution with respect to individual relief that shall include economic and noneconomic terms. Such determination shall be binding upon the Parties. The Monitor’s review shall not take place until after the fairness hearing approving this Stipulation, so that no conflicts of interest can exist between the class representatives and class members.
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IT IS SO STIPULATED AND AGREED

So ORDERED this ________ day __________________, 2005,

_________________________________ United States District Court Judge, Sandra Beckwith

_________________________________ Alphonse Gerhardstein (023484) Trial Attorney for Plaintiff Class
Dated:____________________________

______________________________ Joseph M. Mancini (0022419) Attorney for the Defendants
Dated:________________________

__________________________________ David A. Singleton (0074556) Attorney for Plaintiffs Ohio Justice & Policy Center
Dated:_____________________________

______________________________ Gregory Trout (0022726) Attorney for the Ohio Department of Rehabilitation and Correction
Dated:________________________

34

 
 Ohio Justice & Policy Center
1301 Enquirer Building 617 Vine Street
Cincinnati, OH 45202-2416

For Immediate Release Contact: David Singleton, (513) 421-1108

Monday, October 6, 2005

State of Ohio Settles Prison Health Care Class Action Suit
Court Preliminarily Approves Settlement Terms
Cincinnati, Ohio – The Ohio Department of Rehabilitation and Correction (ODRC) and the Ohio Justice & Policy Center (formerly, the Prison Reform Advocacy Center) have agreed to settle a two-year old class action lawsuit that alleged that Ohio’s prison health care system is unconstitutional. The settlement will lead to major reforms of the way health care is delivered to Ohio’s 45,000 prisoners.
On October 14, 2003, The Ohio Justice & Policy Center filed a class action complaint in the Southern District of Ohio on behalf of three Ohio prisoners – Rodney Fussell, Gary Roberts, and James Love – who claimed that the health care they had received was constitutionally inadequate. Specifically, the suit, Fussell v. Wilkinson, catalogued an array of system-wide problems including medical and dental staffing shortages, unreasonably long delays in the provision of routine and emergency care, problems ordering and obtaining the results of diagnostic tests, and inadequate quality control measures. Shortly after the suit was filed, the parties began working cooperatively to solve the problems. A jointly approved Medical Investigation Team, composed of leading correctional health care experts, conducted a thorough audit of Ohio’s prison health care system. The Medical Investigation Team report, released in February 2005, confirmed most of the problems alleged by Plaintiffs in their class action complaint.
The settlement agreement will lead to sweeping improvements of the state’s prison health care system. As part of the settlement, approximately 296 new, licensed medical staff, including 21 new physicians, will be added over a four-year phase-in period. In addition, all policies and procedures will be revised and new quality assurance measures will be implemented. The Medical Investigation Team will remain in place to oversee the reforms. On October 6, 2005, Chief Judge Sandra Beckwith preliminarily approved the terms of the five-year settlement. Chief Judge Beckwith will hold a hearing on November 16, 2005, before giving final approval.
“This landmark settlement will ensure that Ohio prisoners receive the health care to which they are constitutionally entitled,” says David Singleton, Executive Director of the Ohio Justice & Policy Center. “We commend Reginald Wilkinson and the ODRC for partnering with us to solve the problem,” says Singleton.” Singleton adds: “The suit will actually save tax payer dollars in the long run, as more efficient, cost-effective measures are instituted.”

(513) 421-1108 fax (513) 562-3200 Email contact@ohiojpc.org
OJPC is a non-profit organization. Donations to OJPC are tax-deductible in accordance with the law.

 
 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF omo
WESTERN DIVISION

RODNEY FUSSELL, et aI., Plaintiffs,
v.
REGINALD WILKINSON, et aI., Defendants.

Case No. C-1-03-704

REPORT: ODRC - MEDICAL SERVICES FINAL REPORT OF FINDINGS
Prepared by: Medical Investigation Team (MIT) Fred Cohen, Investigator 1/26/05
L INTRODUCTION This document represents the final; albeit somewhat attenuated, report ofthe Medical
Investigation Team (MIT). That is, the initial agreement to study medical care in the Ohio Department ofRehabilitation and Correction (ODRC) called for the Investigator, Fred Cohen, and the team he would assemble, to visit a sample of correctional facilities to gather relevant facts and report by December 15, 2004. In the view ofthe MIT, a clear pattern ofproblems emerged early in our work and was confirmed as we continued. Thus, while some detail might be lacking, it was agreed that the MIT might discontinue the additional planned site visits and move to the Final Report-Discussion stage.
1

Class counsel and the Attorney General's office agreed to reduce the number offacilities visited from twelve to eight and to have the Final Report based on those visits and the other factfinding activities ofthe MIT. In the interest ofan expeditious resolution ofthis litigation, the parties also agreed that this document might consist of a rather summary narrative fully supported by the MIT member's individual site visit reports.
The individual reports, then, are attached as an extended Appendix A and will serve as the fact-based foundation for the narrative.
The one major exception relates to the work ofthe court endorsed, Independent Fact Finder, Fred Cohen, who also is the principle author ofthis Report. Mr. Cohen used the bulk of his time during site visits to conduct group interviews with inmates who had varying degrees of contact with the DRC medical system.
Ms. Annette Chambers, serving then as the "point person" for Assistant Director Tom Stickrath, importantly assisted Mr. Cohen's selection of inmates for these sessions. Over the course ofthe site visits Mr. Cohen met with approximately 200 inmate-patients.
His impressions from those meeting will be presented in Section VI separately from the rest ofthe Report, which is primarily a distillation ofthe MIT members' individual reports and their subsequent input after reading a first draft ofthis document. IL METHODOLOGY & TECHNIQUES
The MIT membership is: (1) Fred Cohen, Esq., LL.B., LL.M; (2) Ronald Shansky, M.D.; (3) Madie LaMarre, MN, A.P.R.N., B.C.; (4) Barbara Peterson, R.N.; and (5) Mike Puisis, D.O., who joined the team on October 18,2004. The resumes ofthe MIT are attached as Appendix E.
The MIT met initially on April 29, 2004 in Tucson, Arizona to discuss organizational and operation concerns. Among the matters discussed and agreed upon were the following items:
2

• Boundaries: The parameters of our mission were to be investigatory and fact-finding.

We were not asked to "consult" or to provide recommended solutions should problems be

uncovered. Parenthetically, these parameters subsequently were relaxed and at the

December 1, 2004 interim feedback meeting, this writer was allowed by mutual consent

to use normative language and refer to standards in a non-binding, benchmark fashion.

This Report will also follow that more relaxed approach, but will not offer any concrete

recommendations for change.

• Site Visits - General: We agreed that a properly selected sample of prisons would

provide the necessary data we need for our Report. We selected prisons by security level,

mission (for example, reception), and geographic spread.

• Site Visits - Specific: The following shows the proposed facilities and dates for visits.

Central Office & ORW

June 28,29,30

CRC & Frazier

July 26, 27, 28, 29

Lebanon & Warren

August 23, 24, 25, 26

Lorain & Mansfield

September 20,21,22,23

SOCF & Hocking

October 18, 19,20,21

CMC&Dayton

NovlDec 29, 30, 1, 2

Chillicothe & Central Office

December 13, 14, 15, 16

• Site Visit - Process: Dr. Shansky was asked to serve as "Field Marshal" and to thus make the site visit field assignments for each MIT member. That has been done subject to change as dictated by unpredictable factors occurring in the field. Site visits were to begin with a brief courtesy call on the Warden and any staffmembers he might select. 3

Representatives of Central Office were to be invited to attend site visits, but to not play any active role nor participate in inmate-staff interviews. No exit interviews were to be conducted because investigative exits are terribly time consuming and participants invariably ask, "What should we do?" We agreed that should we uncover a lifethreatening situation or one with potentially serious medical consequences we would report this to a responsible official for corrective action. Counsel for both sides was to be informed. After every visit each team member was to prepare a report for Fred Cohen who was to review and retain such reports, and which would serve as the basis for the final report, as noted earlier. • Standards for Review: This, of course, is a very important and very delicate issue. We elected not to use such criteria or terminology as "deliberate indifference," "reckless," or "malpractice." We also elected not to authoritatively rely on standards such as ACA or Joint Commission, except as a guide, and not as some determining factor. We chose also not to use the term "community standards." Such terminology as "clearly adequate (or inadequate) for the task at hand" might be used and we could point out any deficits and the consequences of such deficit (i.e., staff, education, training, medication, delay in care, etc., etc.) Where referral policy calls for something to be done in a certain way or in a certain timeframe, then we elected to note compliance or non-compliance by this standard. I believe it is fair to say that the MIT abided by all ofthese initial decisions. There were several instances where the MIT believed that a particular inmate was "at risk" and we notified appropriate staff and counsel about the need for corrective action.
4

The following table lists the meetings held and actual site visits conducted, along with the relevant dates:

Table I Medical Investigation Team (MIT)
Meetings and Site Visits As of December 9, 2004

Meeting Place!Facility Visited

Date

Initial Organization Meeting (Tucson, AZ) April 29, 2004

Central Office

June 28, 2004

ORW

June 29-30, 2004

CRC

July 26-27, 2004

Frazier

July 28-29, 2004

Lebanon

September 20-21, 2004

Warren

September 22-23,2004

SOCF

October 18-19, 2004

Hocking

October 20-21,2004

CMC

November 29-30, 2004

Central Office Meeting

December 1, 2004

Our site visits were facilitated by the excellent cooperation ofDRC staff, especially Ms. Annette Chambers, and representatives of class counsel and PRAC. This is not the mandatory, formal thank you; this is a genuine expression ofgratitude for providing helpful pre-site information, for making useful physical arrangements while we were on site, and for being open and candid with us. While our present work was facilitated in this fashion, the overall cooperative attitude will facilitate the attainment of any agreed upon change. In other
5

jurisdictions ofwhich we are aware, counsel clash over minutiae and officials attempt to hide or obfuscate. Our work was done within a climate receptive to change and with contending parties willing to work toward agreed upon improvements. ID. OVERVIEW & BACKGROUND
As this Report unfolds there are a number of criticisms leveled at the medical and dental care being provided. Those criticisms must be placed within the framework ofproviding such care in an inherently coercive environment, for a group of people with little political or social support for their health problems, problems that far exceed those in the open society. Indeed, it would be difficult to overstate the generally poor health and high-risk practices of most prisoners.
One expert put it this way: Prison populations are characterized by astonishingly poor health or other limiting disabilities. A recent report prepared by the U.S. Department of Justice showed that 31 percent of state and 23 percent of federal prison inmates report having a learning or speech disability, a hearing or visual problem, or a mental or physical condition. Compared to non-prisoners, prisoners suffer disproportionately from many conditions, including tuberculosis, HIV and AIDS-related disorders, sexually transmitted diseases, hepatitis C, severe mental disorders, and substance abuse. Prevalence rates may be several to many more times higher than the prevalence rates for the same conditions among non-prison populations. The poor health status of prisoners reflects many factors, including lifestyle choices, impoverished backgrounds, and prior lack of access to health care.
6

Prisoners' poor health status is confounded by their limited access to health care while incarcerated. Before the 1970s, the notion that people imprisoned or detained for crimes should be provided with basic health care was deemed absurd. And until the U.S. Supreme Court and other federal courts stepped in with opinions such as those in EsteUe, relatively few official attempts were made to improve the lot of prisoners. The correctional health care landscape has since changed significantly, due in no small part to a substantial volume of prisoner litigation over access to health care, as well as to the work of professional health organizations that have aided in the establishment of minimal requirements for correctional health services. Despite these efforts, some prisoners have no or extremely limited access to health care. (Citations omitted)l Despite the clear constitutional mandate to avoid deliberate indifference to inmates' serious medical and dental conditions, it is difficult to recruit and retain physicians and nurses, medical care is expensive and often underfunded and prison medical care (like mental health care) must negotiate the boundaries of security to deliver needed health care. For example, the higher the security status of the prison, the fewer patients that can be seen due to such factors as searches, shackling, and escorts. Thus, DRC had a daunting task in the delivery of health care services and that problems were uncovered should not be surprising or seen as evidence ofmalaJides. DRC literature indicates at least some agreement with our emphasis on the special problems of correctional health care:
I T. Howard Stone, Ethical Dilemmas in Correctional Health Care Settings in Management and Administration of Correctional Health Care, I-I, 1-8-9 (Civic Research Institute, Inc. 2(03).
7

Meeting the health care needs of the inmate population remains a constant challenge. The population is aging, and prior to incarceration, most did not receive regular medical and dental care and/or had life-styles that were not compatible with good health. The Bureau ofMedical Services must therefore treat a multitude of chronic and potentially life-threatening illnesses. Continuing advances in accepted medical treatment further increase the challenges of meeting these needs. 2 IV. THE SPENCER REPORT & IlEALTH CARE REVIEW TEAM REPORT (HEREAFTER,
STICKRATH REpORT)
The MIT reached early agreement that the above referenced Reports were to serve as platforms for our work. While we did not necessarily agree, for example, with Dr. Spencer's call for adding one nurse to each prison for the Quality Assurance(QA)/Quality Improvement(QI) function, we did agree that QA or Continuous Quality Improvement (CQI) are very important functions and were deficient.
Our approach importantly differed from the Spencer and Stickrath Reports in our emphasis on clinical practice. The Spencer Report essentially deals with organization and process. There is nothing on inmate satisfaction, the quality of medical care, and it has little to say about staff except that there are important shortfalls.
In the brief time allotted to his work and working alone Dr. Spencer did a commendable job and provided the MIT with a valuable basis for going forward.
The Stickrath Report is an internal document and lacked physician participation although there were a number of medically trained staff involved. The Report itself is self-critical and
2 Ohio Department of Rehabilitation and Correction, Bureau of Medical Services Homepage, http://www.drc.state.oh.uslweb/medical.htm. last accessed 1211412004.
8

candid concluding, "that a number of improvements and restructuring to Ohio's correctional health care system is needed." (p. 128)
There are some 140 recommendations made, some of which have been implemented and others that are at various stages ofdevelopment. More important at the moment than any particular changes is the Department's creation ofa climate receptive to change. The Governor's office has been involved in one fashion or another with the Spencer and Stickrath Reports creating further assurance that the MIT findings will not come as a total surprise.
The Stickrath Report did call for additional staffing foIIowing a staffing analysis by all institutions. The staffing recommendations are as follows:
• The Office of Correctional Health Care's central office staff should hire an Assistant Medical Director.
• The Office of Correctional Health Care's central office staff should hire a Nursing Director.
• A total of 21 Quality Assurance Coordinators should be hired at institutions with a determined need for this position.
• A total of 34 health care staff should be hired for the institutions that include the addition of 15 Registered Nurses, 9 Licensed Practical Nurses, and 10 medical clerical positions.
• One full-time Phlebotomist should be added for North Central Correctional Institution and Marion Correctional Institution, and two (2) part-time Phlebotomists for Franklin Pre-Release Center and Pickaway Correctional Institution. (Recommendation 124, p. 145) Please note that the staffing recommendations are not reproduced because ofour
agreement or disagreement with them. They are reproduced to illustrate DRC's analysis and its 9

commitment to seek fairly substantial increases albeit with no reference to an increase in frontline physicians.
The Columbus Dispatch (Mar. 9, 2004) reported on DRC's commitment to have 57 new health care workers at an annual cost of $3.5 million. (A later article referred to 60 positions being sought.) The Governor's office reportedly ordered budget cuts of$13 million for the fiscal year ending June 2004, then up to $27 million for the next year representing significant hurdles forDRC.
v. DRC PROFILE
As ofDecember 2004, DRC had 32 institutions, with two ofthose operated privately. In fiscal year 2002 the total Department expenditures were $1,495,523,003, with medical costs totaling $115,043,858 or 7.7% of the budget.
In fiscal year 2003, the total prison budget dropped to $1,371,549,558 and medical costs were reduced to $113,975,768 although, this now represented 8.31% ofthe total budget.
The DRC inmate population was 44,917 in 2002,45,402 in 2003, and 42,727 in March
2004. Two prisons have been closed and SOCF and asp are running well below their rated
capacities. In 2003 payroll expenses for medical services were 33.7% ofthe total medical
expenditures while mental health was 36.3%. On the other hand, in the same year the cost per inmate was calculated at $70.70 per day with medical care costing $7.23 per day and mental health $3.96 per day.
According to DRC public information: The Bureau ofMedical Services is responsible for the oversight and coordination ofthe delivery of health care services to all inmates incarcerated in Ohio's prisons. There are several levels of health care within DRC.
10

The first and most basic level of care is provided through primary health clinics established at each institution. These are staffed by a combination of civil service and contract health care professionals. The health care team at each institution manages the day to day operation ofhealth care services by providing primary care and addressing the routine health care needs of the inmates. In addition, several institutions have small infirmaries that provide 24hour nursing care for inmates with acute illnesses not requiring hospitalization.
Two skilled nursing facilities, Frazier Health Center located in Orient, Ohio and the Corrections Medical Center located in Franklin County, provide more intensive health care treatment. Some inmates with serious illnesses or disabilities may be permanently assigned to one of these facilities during their incarceration. The MIT visited both ofthese facilities.
A third level of health care is available through a contractual arrangement with The Ohio State University Medical Center (OSUMC), where emergency room and inpatient hospital services are provided, and surgeries and advanced diagnostic testing take place. The 2005 annual contract with OSU is at a cost of$42,000,000. Physicians from OSUMC also conduct specialty clinics at the Corrections Medical Center. Inmates from all institutions are scheduled for these clinics as needed.
Acute level hospital stays are to be minimized by use ofthe Corrections Medical Center and Frazier Health Center as step down facilities. The Corrections Medical Center is also viewed as a resource in providing specialty care through the OSUMCIDRC partnership, long-term care beds, and a special care unit for the terminally ill. The OSUMCIDRC partnership also supports a dialysis unit at Frazier Health Center that provides treatment for 40 to 50 inmate dialysis patients, making it one of the largest such units in the state.
11

In March 1995, the Department implemented telemedicine, an interactive video technology that provides specialty medical consults to Ohio prison inmates. This program has been generally well received. The technology links 32 DRC institutions across the state and the Bureau ofMedical Services with the Corrections Medical Center and The Ohio State University Medical Center. Approximately 5,000 such patient consultations are now completed each year, with 19,000 having been completed since implementation of the program.
DRC, like many other correctional agencies, has implemented a $3 "co-pay," drawn from inmates' personal accounts. This fee is assessed for each self-initiated request for medical treatment. No inmate, however, is to be denied needed medical care because of an inability to pay this fee. Mental health services and follow-up in chronic care clinics are supposedly exempt from this policy.
There are few areas arousing more inmate ire and frustration than the co-pay provision. This will be discussed, infra, but it is worth noting here that inmates regularly claim being charged for chronic care follow-up and relate that they often refuse to seek care in order to preserve limited funds for necessary or desired commissary items. VI. IMPRESSIONS: FRED COHEN
In this section I present the impressions formed from meeting with various inmate groups, typically four groups ofeight (8) inmates each day for the two days of our visit. In addition, as the non-clinical team member I also talked with various staff, on and offthe record, toured the facilities and spoke at length with MIT members.
Parenthetically, my procedure was to check my group session impressions with our clinical experts who were doing record reviews. Invariably our views coincided.
12

First, a general impression formed by me from the numerous inmate-patient groups I conducted: There is deep and widespread dissatisfaction with medical and dental care. Often there was anger for example, at ORW, at other places, Frazier, for example, there was a sense of resignation.
Early in our site visits, MIT members pointed out consistent mismanagement of cases, minimal counseling and follow-up, and a high potential for interruption ofcare when transfers occur. On the other hand, access to OSU seemed at least favorable and my inmate-groups were generally not unhappy with the care received there. They were, however, concerned about OSU medication recommendations consistently being ignored or changed. The inmates believed that the medication recommendations were being changed and often for no apparently valid reason. Beginning with ORW, our first site visit, a series of problems were repeatedly voiced, and reported here not necessarily in order ofimportance.
1. Too many doctors and nurses view inmate medical complaints as presumptively contrived or overstated and this attitude of mistrust too often contributes to a sterile armslength treatment relationship. One doctor in particular was repeatedly singled out for "uncaring" care.
2. It is often difficult, or simply takes too long, to access nurses' sick call, although it seems easier to see the nurse than to see a doctor thereafter when there is a referral.
3. Some doctors - especially at ORW, then LebanonIWarren - were harshly and repeatedly singled out either for wholly unresponsive care or "care" that is so remote that the doctor never even physically examines a patient, maintaining a physical distance. I heard multiple instances ofbasic errors: inmate had a broken wrist and the ankles were x-rayed; inmate prescribed blood pressure meds "But I don't have high blood pressure!" 13

Diagnostic procedures are done and the individual never learns ofthe results. Indeed, lab tests are universally completed after the physical examination at reception and if abnormal, not usually addressed. Thus, a partial breakdown in medical care begins "at the front door." One would think that a reasonable oversight system would have discovered and fixed such a basic and potentially harmful problem. At Frazier, inmates reported that CO.s tell them, "You ain't bleedin', you ain't needin." Representative? I don't know for certain, but it is expressive of an attitude that some inmate-patients ascribe to some staff at that facility. 4. There are few deeper resentments than those related to the co-pay; inmates claim to be charged repeatedly even when it is a return visit for the same chronic care. Inmates with meager funds claim they bypass sick call to avoid being charged and then not able to afford needed commissary items. The Stickrath Report, Sec. 32, p. 133, recommends some important changes regarding the health care co-payment. Thus, the problems with co-pay appear to be known and await only a remedy that satisfies legitimate agency and inmate concerns. 5. Medication changes seem to be made regularly after a transfer with little or no explanation and recommended medication from OSU too often is not provided causing fear and anger among inmate-patients. Bolstering this observation is the following observation by Dr. Ron Shansky: The lack of communication between physicians and patients is a common problem seen throughout our evaluation ofthe different services provided. This absence of communication with regard to medication changes results in inmates feeling they're getting the wrong medications or that the physicians working for the Ohio Department of Corrections are purposely not providing the necessary or
14

recommended medications prescribed by the "experts" from Ohio State University. This perception on the part of the inmates results in grievances and other problems. Any time a medication is being changed for a patient, this change has to be discussed with the patient and the basis for the change made clear to the patient. 6. Groups become more credible to me when they mention a Dr. X or a Nurse Y as "good" or "caring" and I heard enough of that both to credit much ofthe negative comments and to also realize there are some very skilled and dedicated staff out there doing good work under difficult conditions. You cannot underestimate how important these caring staff are to the inmate population and how much they need to be supported. 7. Early on, one forms the impression that this is a nurse-driven system, and the impression strengthens over time. Inmates recount instances of doctors asking nurses for their medical diagnosis; nurses overruling a non-objecting doctor's diagnosis; and nurses deciding on medication and even treatment plans. Study of the records, to be elaborated on infra, seems to confirm this. There is, then, an overriding absence of physician oversight of health care delivery at virtually all facilities. 8. Early on, one senses the lack of oversight by Central Office. This impression is not gleaned so much from inmates but from conversations with various staff members. The contracting system itselfundermines consistent application of policy and without effective Central Office review, quality issues go undetected and policy application seems hit and miss. Dr. Spencer appears to have said as much. 9. Underfunding and, therefore, understaffing, becomes quite obvious when you visit LebanonIWarren and find 27 or 28 combined physician hours for 3000 inmates, well under the minimall FTE physician per 1000 inmates recommended by the National
15

Commission on Correctional Health Care (NCCHC at p. Ill. APHA would require 1 FTE doctor for every 200-750 inmates.)
vn. MAIN FINDINGS
This is the most fundamental section ofthis Report. It encompasses what I delivered as "Main Talking Points" on December 1, 2004 at the "feedback" meeting previously described. Those "Talking Points" have been embellished and expanded for this document, but still importantly represent a distillation ofthe individual reports. (See Appendix A)
Each member ofthe MIT has importantly contributed to this section and reviewed it prior to distribution. There will be an occasional overlap here with the previous "impressions" section and I have not attempted to eliminate the overlap in the beliefthat here there is a different voice, so to speak, and the repetition may provide emphasis rather than redundancy.
vm. MIT CONSENSUS POINTS
Turning now to an MIT consensus on what I earlier termed "talking points." 1. Policy/Protocol: There is a 26-page analysis ofthe P & P. That document is attached as
Appendix B. Madie LaMarre's summary, which we adopt, is as follows: "The ODRC medical directives are divided into medical policies and protocols. The 26 policies cover administrative, operational, personnel, legal, dietary, and quality improvement areas. The Medical Protocols cover dental, dietary, infectious diseases, medical, nursing,
operational, pharmaceutical and quality improvement. *** Many ofthe policies and
protocols are outdated. The ODRC does not reference any current standards for treatment of chronic illnesses. The protocols often make general statements regarding 'standard medical practice' or 'current CDC guidelines' without providing specific references to stafffor guidance. The practical effect is that is that the ODRC does not
16

have a standard by which to hold health care staff accountable for their practice. Many of the policies are unclear as to whose responsibility it is to implement policies or practices. Policies often state that something shall be done, but do not clarify who specifically is responsible; therefore no one is responsible.3 Regardless of policy, MIT observation and health record reviews showed that the nursing staff assumes primary responsibility for implementation ofthe health care program, with minimal physician oversight. This reflects well on nursing staff efforts to provide good care to patients, but places too much responsibility on nurses for patient care." In the words of Dr. Shansky, "The current system creates avoidable liability...by not providing adequate policies and procedures, nor adequate resources." That single sentence encapsulates the overall findings ofthe MIT. Policies and procedures (or protocols) create the organizational and operational framework for a health care system. The term "resources" is intended to include physical and human resources. Resources alone, of course, do not guarantee an adequate health care delivery system. There must be reasonable access by the inmate population to the various mechanisms designed to identify need and to provide care. The components of a medical program include intake/screening, basic ambulatory care, specialty care, inpatient care, and emergency care. As this Report will make clear, our investigation revealed problems, some quite significant, in all these areas. We also found some significant strengths. For example, virtually every inmate interviewed at CMC spoke well of the care received at OSu. We
3 As this matter proceeds, closer study of the content and relationship of the protocols and policies is strongly indicated.
17

found significant numbers ofcaring clinical staff, staffthat should serve as a foundation for future progress. 2. Contractual: The contractual arrangement with physicians encourages contract physicians to minimize care; doctors focus on the number of sick call follow-up visits and chronic care clinic visits without regard for the quality of those visits. Thus, most patients seem to be seen by physicians for only a brief encounter with very little documented physician evaluation. Physician examinations are rare and when they occur they lack thoroughness. Patient contacts, without regard to time spent and how, seem to be the primary concern of the contract physicians. This is not, however, an indictment against contracting, only how it is presently done in Ohio. One ofthe best examples ofthis problem was found at the Warren and Lebanon Correctional Institutions. At those institutions, a total of26 or 27 hours per week of physician time was provided to the combined 3000 inmates. This is little more than one half-time doctor for 3000 inmates. It is impossible to provide adequate care and appropriate communication with both nurses and patients in that little amount of time. The results at Lebanon and Warren can be clearly seen, demonstrated by our findings. With regard to sick call, in only 30010 of the charts was the inmate's complaint thoroughly described. Usually descriptions consisted of a single word. This is not an adequate history and doesn't allow for an adequate assessment of the basis ofthe patient's problems. A patient suffering from a serious disease who described weight loss was not queried regarding his food intake or his energy level, and there was no basis to determine the cause of his weight loss. Another patient who had an abnormal electromyogram was seen
18

for follow-up ofback pain, and no history was taken at all. Thus the sick call process was in fact inadequate. Furthermore, the care provided to patients with common chronic diseases was also deficient. Our visit occurred in the early fall of2004; one patient with newly diagnosed diabetes in September of2003 had no physician visit in the intervening year. Another patient whose diabetes was poorly controlled had no change in his medications prescribed. Thus, poor control was guaranteed in the future, along with the associated cardiovascular damage. A patient with elevated fat in his blood and an elevated hemoglobin Al C was seen recently, but there was no change in his medications. In fact, the official chronic care visits appear to be conducted by a nurse, and the physician appears to write orders at a later date. Patients with hypertension did not have a heart exam by the physician. A patient with asthma who had to take systemic steroids twice since January has had no peak flow evaluation and has never been placed on inhaled steroids, which are safer, in order to prevent the need for systemic steroids. This same patient has not had a physician evaluation since November 2003. What appears to have happened is the low-bid process, without a defined required set of physician hours, has resulted in inadequate numbers of dollars being allocated for physician services; and then the physicians, responding to the contract monitoring requirement, only focus on ensuring that patients are seen for sick call with the required time frame. This results in timely but inadequate sick call visits and completely inadequate physician attention to patients who have known serious diseases such as hypertension, diabetes, etc.
19

Contracting for physician services frequently is seen as advantageous to hiring physicians through a civil service process. However, the contracting system utilized needs to ensure that (a) there are sufficient dollars allocated to provide the necessary physician time so that patients with serious problems are seen both timely and thoroughly, and (b) that the contract monitoring requirements focus not just on timeliness of sick call, but on adequacy ofall services, including sick call, chronic care, urgent and emergent services, specialty service follow-up, etc. All ofthese things can be achieved through a contracting process. 3. Training: Policy and protocol training for the field seems insufficient; policy manuals at facilities (for example, ORW) were dated and incomplete as were health record forms. For example, there is no system to train nurses regarding the Nursing Protocols and Assessment Forms. The expectation voiced by Central Office is that the institutional leadership is to orient and train the nurses regarding the protocols. However, this is impractical given the volume of protocols and forms, and the expertise required to provide instruction regarding their use. Not surprisingly, in not one ofthe facilities the MIT visited were the protocols and forms consistently in use. Similarly, there is virtually no evidence ofnurse or physician training regarding the chronic illness clinic protocols. However, given our earlier assessment of the protocols as dated, one would not remedy the training deficiencies until the standards themselves are revised. From a personnel perspective, Central Office lacks the capacity at this time to conduct adequate training for the system, and carry out its monitoring responsibilities. 4. Reception: The medical reception process is inadequate at CRC and ORW. Contributing to this is inadequate staffing, policies, and deficiencies in the ODRC medical reception
20

fonns. With regard to staffing the Physician and nurse practitioner staffing is completely inadequate to conduct a meaningful medical history and physical examination. At CRC, clinicians spend an average of 4 minutes with each patient. Inmates reported that the physical examination took less than one minute. Other than the 14-day time frame for completion of medical reception, policies do not address the time frame for which specific components (medical history, labs, dental examination) are to be completed. At both CRC and ORW, reviews showed that intake screening lab tests routinely take six weeks to obtain and file in the health record. Often laboratory tests are not filed in the record at all. Clinicians do not address abnormal clinical and laboratory findings, such as hypertension and severe anemia. At ORW, screening tests, such as gonorrhea and chlamydia were not being conducted on all patients. Health care staff does not notify patients timely ofIllV antibody test results. With regard to medical record fonns, the Initial MedicalfMental Health/Substance Abuse Fonn (DRCS 170, Rev 1100), is focused exclusively upon mental health and substance abuse issues. The only question that is medically related refers to a history of head injury. There are no questions, for example, related to symptoms oftuberculosis (cough, fever, weight loss, night sweats), mobility or other sensory impainnents (deafuess, blindness) that might indicate the inmates' need for special housing upon arrival. The fonn does not facilitate the early identification of medical problems requiring immediate referral or special housing. The Health History Fonn (DRC5301, Rev. 11/99) contains no questions regarding history ofHIV infection, weight loss or night sweats.
21

The Physical Examination Form requires clinicians to document only abnormal findings, rather than to document both pertinent normal as well as abnormal findings. For example, if a patient complains of chest pain, it is as important to document that the lung and heart sounds are normal as it is to document abnormal findings. MIT reviews showed minimal to no documentation of physical findings on the form. As a result, clinicians often failed to identifY obvious medical needs and develop appropriate treatment plans. Indeed, clinicians tend to ignore high blood pressure when known and inmates with known serious medical conditions often do not have this information translated to the physical examination form.
s. Transfers: Intrasystem transfers are troublesome, as suggested earlier in Section VI.
DRC Medical Services Policy (68-MED-OI) briefly addresses the Intrasystem Transfer process, however it does not provide sufficient guidance for the nurse conducting the review. For example, the policy does not address the need to review the record for recently completed or pending consultations or physician orders initiated at the previous facility that have not yet been implemented. The policy does not provide guidance or criteria for referral of patients to the physicians upon arrival. Protocol B-12, "Use ofIntrasystem TransferlReceiving Forms" does, indeed, address these matters but for reasons that remain unclear, policy and protocol combined do not work to create a functional system. MIT reviews showed that the process was inconsistent and in some cases nonfunctional. This was most glaring at Frazier, for example, where staff reported actually being unaware ofwhen inmates arrived at this facility. The intrasystem transfer process must ensure continuity of medical care, however staff often failed to note pending or recently
22

completed consultations; chronic illnesses; or to accurately ensure timely continuity of medications. When chronic illnesses were identified, referrals to the physician for follow-up care often were not timely, even when the disease was poorly controlled. 6. Chronic lllness Care: The basic CIC system is in place in that nurses schedule patients to see the physician every three months, however the quality of the physician visits is poor and CIC forms are not consistently used. Health record documentation shows that many of the clinic visits are meaningless because the physicians do not take adequate histories, conduct physical examinations, nor reference key laboratory tests. Because ofthe inadequate assessments, physicians often do not change treatment plans based on how the patient is doing. There is no coordination between the scheduling of laboratory tests with the chronic illness clinic visit. Therefore, labs often are outdated or "pending." Even when labs are ordered and obtained in timely fashion, there is no system, at any facility the MIT visited, for the timely tracking and retrieving oflaboratory reports and then filing them in the record. Patients are not scheduled for clinic visits based upon severity of illness or the degree of control of the patient's disease. Clinicians see patients whose diseases are poorly controlled with the same time frequency as they see patients whose diseases are well controlled. There is virtually no physician or nurse documentation of patient education regarding chronic illnesses. The MIT was concerned that the scheduling nurses do not understand clinical guideline requirements. A patient at Lebanon who had hypertension, diabetes, and asthma had been seen almost every three months by the nurses but had not been seen by a physician for the diabetes or
23

asthma for over a year. Although five months prior to our visit the patient was seen for hypertension by the physician, there was no blood pressure taken at that visit, thus the physician was making therapeutic judgments without adequate data. One patient who had an elevated blood pressure in April 2004 has not had a physician visit since. In fact the patient has not seen a physician since November 2003. At ORW, none ofthe patients being followed for diabetes had adequate objective clinical data in the chart in order to assess the control ofthe disease, which is necessary in order to design the appropriate treatment plan. Similarly, a patient at ORW who is known to have a clotting disorder and had had open-heart surgery and deep vein thrombosis has had no physician note regarding these problems. In all ofthese ways, the absence of physician involvement as well as physician communication with patients creates avoidable liabilities for the Ohio Department ofCorrections. 7. CQosultations: ODRC has a well-organized scheduling system for specialty consultations and procedures. However, the scheduling process (once a month scheduling) has a built in delay in the scheduling system ofup to a month. For example, ifthe physician requests a consultation on the 16th ofa given month, the appointment request will not be faxed to CMC scheduling until 15th ofthe following month, thereby building in an automatic 30 day delay. It was reported to us, however, by ODRC officials, that in the case ofan emergency an instant fax process may be, and is, used to make an appointment. No policy or protocol forbids that procedure. Although the timeliness ofinitial clinic appointments did not appear to be excessive (with the exception ofgastroenterology and possibly neurosurgery), the frequency of
24

appointment cancellations for all clinic appointments is 25%. When added to the built in scheduling delays this represents further delay in diagnosis and treatment of medical conditions. Cardiology, neurology and gynecology in particular were problematic with respect to appointment cancellations. Access to gastroenterology services is 9-12 months at this time, even for patients with known serious health conditions. Although data was not provided, access to neurosurgery consultations was reliably reported to be problematic. When the primary care physician orders the consultation, the nurse, rather than the physician, completes the request fonn. This often results in a consultation request fonn with an inadequate patient history, physical and laboratory test information, and questions the consultant is to address. Following the consultation, the requesting physician does not see the patient to review the consultant findings and recommendations with the patient, and determine whether the patient understands the plan ofcare and is in . agreement. Often, no one sees the patient following the consultation. Rather, management ofpatients is being driven by the consultants and nurses (writing the consultant orders that the physician co-signs), rather than by the primary care physician. This means that once the institutional physician orders a consultation the physician does not consistently monitor the patient for that condition. It is therefore not surprising that there is virtually no documentation ofphysician or nurse education concerning the consultation findings and recommendations. Ifthe patient is lost to follow-up for any reason, the primary care physician will never know this because helshe does not monitor the patient. MIT review found that patients were often lost to follow-up and consultant recommendations were not implemented.
25

Contributing to the lack ofadequate care following appointments is the fact that consultation and hospital reports are not obtained and timely filed in the health record. The MIT found no meaningful system for tracking and obtaining consultation or hospital reports. On multiple occasions the MIT requested reports, and only then did staff print them from the computer. As a result, frequently there are no reports in the health record and staffis unaware ofconsultation findings and recommendations or ofthe patients' hospital course and need for follow-up care. The situation is aggravated by insufficient staffand no specifically designated position for this task. The lack oftimely consultation and hospital reports is a serious and systemic problem that impedes timely medical care. 8. Medications: There is a pattern ofthe nurses writing initial orders for prescription medications, and then renewing medications without a correlating physician visit. This sometimes results in transcription errors that harm patients. Physicians often sign the medication orders without a clinical assessment ofthe patient. Therefore, the same medication regimen may be reordered without regard to whether the disease is well, or poorly controlled. This was most noticeable at eRC and PCI-Frazier. As a matter of policy, there is no health record documentation required to show that inmates receive prescription medications that are self-administered, such as high blood pressure or seizure medications or antibiotics. Although records are kept in the pharmacy, this information is never placed in the record, therefore the clinicians and nurses do not know whether the patient received medication, and ifthe patient is transferred this information does not accompany the inmate.
26

At CRC, as a matter of policy, when an inmate ran out of medication, the nurses borrowed the medication from another inmate. They even had a "Borrowed Medication Log" which, in effect, documented a legally dubious practice. 9. Medication Administration: Documentation ofmedication administration for inmates in general population is reasonably consistent with current nursing practice standards. However that is the only area ofimprovement noted. Medical records in many cases are disorganized making relevant infonnation difficult to locate. There is no medication compliance monitoring (this is an area included in the existing chronic care form) and no medication education so that inmates might make an "informed" decision. ODRC does have protocols covering the documentation process but they are inconsistently implemented and there is no peer review or quality assurance mechanism in place to address people or process issues. Only one facility had a corrective action in place to address this failure. The offense when first documented resulted in an educational session and supervision ofthe employee. Ifthis was adequate to correct the situation that was the end. Ifnot disciplinary action was started. ODRC also has protocols that address the areas ofmedication prescription and administration and there are mechanisms for reporting errors as well but there is no check and balance system currently used in daily practice to effectively manage the use and administration ofmedications. The impact ofthese system failures puts inmates at
increased risk as especially noted with mv cases. The inmate is seen by an Ohio State
University physician by telemedicine. This physician prescribes the course ofcare, including medications. These physician orders are then copied by the nurse and signed
27

by the institutional physician without verification with the original orders or connection to the inmate's current condition by the primary care physician. Providing medications with no explanation rarely promotes compliance on the part ofthe receiving individual Without using an informed consent [or educational process] ODRC likely incurs the costs ofwasted product and hospitalizations that may well have been avoided. Medication compliance is not tracked (it is an ODRC requirement for chronic care clinics) so there is no base for determining the efficacy of medications as prescribed. There is no correlation with the inmate's current condition by clinicians that has been documented to indicate the need for continuing or altering the course of medication and/or treatment. Diabetics receive insulin without apparent regard for blood sugar levels. At one facility the insulin was drawn up in syringes prior to any inmate appearing. These injections were then refiigerated for later use, insuring that no inmate received what had been ordered. There are policies and protocols for diabetic diets but the use ofthese guidelines was not observed in any facility and inmates universally commented on the difficulties of following a diabetic diet. While nurses have received the most attention and criticism for medication administration the entire process, beginning with the physician, should be reassessed and improved. The pharmacist is responsible for packaging the medication accurately (as prescnDed) along with frequency (once a day, etc.) and specific instructions or cautions to be observed with individual medications, e.g. take with food. Pharmacists work limited hours in very limited space which may contribute to errors ofomission and delays
28

in the provision ofmedications as ordered. These processes are not monitored and there are no guidelines established to define expectations or to measure against and improve. Likewise, the areas used for pill call are frequently 'multi-purpose' and require the transportation of medications to the area. We observed space that was poorly lit, limiting visualization ofthe inmate identification and ingestion. At one facility the nurse had to climb over the medication cart to transport additional medications back and forth depending on inmate need. The collaboration between nursing and custody staff was the only positive aspect of medication administration at this facility. Medication rooms appear to be makeshift in many of the sites visited. Rooms without running water, for example, do not encourage hand washing. Refrigerators for medications were frequently in poor repair with doors which didn't close. When thermometers were present in the refrigerators the temperature readings were not recorded as required by ODRC protocols. 10. Informed Consent: DRC Medical policy regarding legal issues (68-MED-09) states that inmates shall have the right to informed consent and to refuse medical treatment. With regard to refusal ofmedical treatment, the policy does not specify who is to counsel the inmate regarding the risks ofrefusal ofmedical care and obtain the Refusal ofTreatment Against Medical Advice form. However, MIT health record reviews show that it is predominantly nurses who obtain the signed refusals, even for life-threatening conditions. The health records do not consistently reflect that the nurses properly educate and document the risks to the inmate for refusing care. The most appropriate provider to conduct this education and counseling is the physician who recommended the treatment.
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The policy also advocates use offorce to obtain blood samples from inmates when they
refuse court-ordered blood testing (e.g., paternity or mv tests). While this may be legally
permissible, using force as the initial strategy to obtain the blood sample places medical and correctional staffat risk for needlestick injury and exposure to blood-borne infections
such as mv and viral hepatitis.
Prisoners, of course, have very much the same right to consent to, or refuse, medical treatment as patients in the community. Consent to certain diagnostic procedures (for example, AIDS, TB testing) at times conflict with religious beliefs. There is no monitoring (or recognition) ofadverse drug reactions or medication errors (omission, incorrect dose, e.g.). There is risk inherent with all medications but there is no riskJbenefu rationale available in the inmate's record. There is no documented informed consent that confirms that the nurse, the doctor, or the pharmacist has presented the anticipated benefit ofthe medication as ordered. There is no documentation ofthe identification ofadverse reactions, which though unlikely, should be reported immediately ifthey occur. 11. Urgent CITe: Another area in need ofat least a "tune-up:" DRC Medical Services Policy (68-MED-O1) addresses Emergency Services. The policy appropriately addresses emergency training that is required for health care and correctional staff. Although correctional officers are trained to be first responders, they are not required to initiate cardiopulmonary resuscitation (CPR). Since correctional officers are most likely to be the first personnel to respond to the scene, the failure to initiate CPR will greatly increase the likelihood that CPR will be unsuccessful. An example ofthis occurred at Warren Correctional Facility where an inmate was found hanging by correctional staff. When the
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nurse arrived, the patient was lying supine with the sheet tied around his neck. Staffhad not initiated CPR The only emergency drills conducted are to assess whether responders are able to arrive on the scene within 4 minutes. Drills are not conducted to determine appropriate security and clinical response to various types ofemergency situations (e.g. uncontrolled bleeding, difficulty breathing, attempted suicide, etc.). Emergency equipment and supplies vary from site to site. At Hocking Correctional Facility, for example, emergency equipment is dispersed throughout the unit (due to insufficient space) and there is no uniform system for ensuring that all emergency equipment is maintained in proper working condition. When assessing patients in urgent situations nurses do not utilize protocols to evaluate and refer patients. This results in some patients not being appropriately evaluated and
referred to physicians. Physicians, in turn, do not routinely see patients returning from the emergency room or, as noted earlier, those discharged from hospitals. This was
demonstrated to result in lack offollow up ofconsultant recommendations and in failure to follow up on serious medical conditions. For example, at Hocking Correctional Facility a 68-year-old patient who was febrile, weak and disoriented was sent to the
emergency room where he was diagnosed with urosepsis (a systemic infection resulting
from an untreated urinary tract infection) and a dangerously high potassium level. The
physician did not see the patient upon his return to monitor his condition.
At Warren Correctional Facility, from 6/16/2004 - 8/30/2004, an AIDS patient (RC) presented emergently on eight occasions for symptoms offever and shortness of breath that were attributed to an mY-related pneumonia (PCP). In several instances, the nurse
31

did not evaluate and refer the patient according to ODRC's Nursing Protocols. The physician did not fully evaluate and adequately treat the patient for PCP pneumonia. The patient had been non-adherent to his antiretroviral therapy and medications that would have prevented PCP pneumonia. but there is no documentation in the record of counseling with the patient regarding the need for medication adherence, and risks of non-adherence (pneumonia. death). The patient's condition worsened over time, resulting in two visits to the hospital (one ER visit and one admission). The physician did not see the patient following his return from an outside hospital to evaluate the patient and his understanding ofthe treatment plan. A further example of the poor physician follow-up was a patient at the reception center who presented with chest pain, pressure in the chest and tingling in the chest. He was given nitroglycerin and sent out with the EMT squad. He was admitted to Ohio State University Hospital and ultimately underwent a cardiac catheterization which demonstrated abnormalities in his coronary arteries. He was also placed on five antihypertensive medications and was found to have an elevated cholesterol level. Since his return, there has been no physician follow-up. This patient is at very high risk for developing a heart attack. Another example is a patient at Warren Correctional Institution who developed sudden onset ofleft arm weakness and left leg numbness in March. He was ultimately sent out to OSU and diagnosed with an intracranial bleed. He returned to the institution, and several days later developed a headache and twitching with weakness. He was transferred back to OSU and refused admission. He also refused infirmary placement and was sent directly to his housing unit. However, since returning to the housing unit, he had not been seen in
32

follow-up by the physician. In most systems, although patients may refuse treatment, they may not refuse placement in a housing unit, as that's a bed assignment and they have no right to refuse a bed assignment. An example of poor phySician follow-up occurred at the Warren Correctional Institution where a patient with a brain tumor presented with unsteadiness. He was brought to the infirmary and then sent out. He ended up at CMC, where he stayed for five weeks with a diagnosis offever and unsteadiness. He was returned to Warren and about a week later was seen by the physician on sick call as the result ofa sick call request. The physician note demonstrates no knowledge ofthe prior problems that this patient suffered and no effort to follow up on them. 12. Sick Call: There is an OORC policy for Nursing Guidelines for Assessment and Triage with an effective date ofDecember I, 2003. The policy does not address the specific time frame in which inmates are to be seen, only that the inmate will be seen at the next scheduled sick call, and that ifthe number of requests is greater than the nurse can see, the inmate may be deferred until the next scheduled sick call. This can result in inmates being deferred for indefinite periods oftime. For example, at ORW, the timeliness of being seen in sick call varied from 1 to 7 days. The OnRC policy does not address nurse referral to physicians. It was reported that this subject is addressed in the physician contracts~ however this does not provide sufficient guidance to nursing staff. There is no training provided to nurses regarding use of the nursing protocol and assessment forms. Not surprisingly, the (dated) protocols and forms are not consistently used at nRC faciIities. In general, the quality ofnursing assessments is poor, lacking in adequate historical and physical assessment data.
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At ORW, health care staffis not conducting daily rounds in segregation. The records we have reviewed indicate that Doctor's sick call is scheduled within 24 to 72 hours depending on day ofthe week, need, etc. (and actually may occur on the same day as nurse's sick call). Thus, timeliness ofthe appointment itself seems not to be a significant issue, except at ORW. The issue has been the conduct ofthe physician during sick call, (for example, has there been any physician assessment or is the action taken simply based on information from nurse's sick call; does the documentation provide any information to support action taken or the fact that no action was taken; is the information based on observation or self-report). Physical assessment data is incomplete and frequently appears to be inconsistent with the care provided or outcomes. At ORW, for example, there were days when no one was seen at sick call (5/4/04) and for the five days in May that we studied 48% ofthose scheduled is the highest number seen with 18% the lowest and 31% (15 of49) the mean. 13. Infectioys Diseases: A) TB Infection: Staff was found not to assess and monitor TB patients according to ODRC Policy, Inmate TB Skin Testing and Treatment Guidelines (Infectious Disease Protocol C-3). The protocol does not indicate what standards are used to establish guidelines, such as the Centers for Disease Control and Prevention (CDC). The protocol is somewhat confusing as it discusses both TB infection and TB disease. The protocol does not indicate the treatment regiment for patients with active tuberculosis and what staffshould do ifthe disease is diagnosed (Le., should patients be transferred to CMC). The protocol requires that patients with TB infection should be evaluated monthly, however, this was not found to be actual practice in any ofthe facilities.
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The protocol indicates that patients with liver function tests 2 times normal or with symptoms ofINH toxicity must have medications discontinued immediately. This is problematic because many patients placed on INH will have elevated liver enzymes. Centers for Disease Control and Prevention (CDC) guidelines indicate that patients with liver enzyme elevations of3-5 times normal may be continued on medication. Therefore, this policy may inadvertently result in premature discontinuation of patients on medication and defeat the purpose of prophylaxis, which is to prevent active tuberculosis. MIT reviews showed that at CRC, there is no tracking system of patients in the TB infection clinic. Nurses do not thoroughly interview newly arriving patients reporting a history ofTB infection for symptoms of active TB (cough, fever, weight loss). These patients usually, but not always, receive a chest x-ray to rule out active TB. This is important because patients with active TB are infectious to others, and patients with TB infection (normal chest x-ray and no symptoms) are not infectious to others. Once TB therapy is prescribed, clinicians and nurses are not adequately monitoring patients during the course oftheir TB therapy to ensure that they adhere to the medication and to screen patients for medication side effects. This is important because the medication used to treat TB infection can damage the liver, and many inmates are at increased risk ofliver disease due to other conditions such as hepatitis B and C. In addition, nurses renew medications automatically without the appropriate clinical evaluations. In addition, the problem ofTB infection is often not listed on the Problems List. B) Hepatitis C: The hepatitis policy is confusing and should be reviewed and coordinated with the Hepatitis C treatment protocol, which is a reasonable basis for a protocol for treatment of persons with hepatitis C infection. It does need, however,
35

editing for clarity and there are some revisions that should be undertaken to make it more current scientifically. Some problems are: a. It does not address the role ofliver biopsy. b. It requires that a confirmatory PCR test be done to confirm infection; this is a costly
test and does not need to be done in persons who are determined to be high risk, which is most ofthe individuals tested in prisons. c. The role ofwho manages the patient is not addressed. Most ofthe physicians the MIT evaluated would not be appropriate to conduct these protocols. A specialist should be involved in canying out these protocols. d. It is not clear who is responsible for what: for example, what is the role ofthe primary care physician, nurse, specialist, etc. C) IDV: IDV medical care at the facilities was found to be so profoundly inadequate as to amount to no care at all. This is so despite reasonably good access to infectious disease consultation services at OSU. There appears to be a fundamental lack of knowledge and
training ofthe ORC primary care physicians regarding mv care. At virtually every
facility MIT visited, physicians do not conduct meaningful histories and physical examinations; monitor laboratory tests that reflect disease control or metabolic side effects ofmedications; provide prophylaxis for the prevention ofopportunistic infections nor counsel patients about their disease, medication side effects and the critical importance of adherence. Physicians do not monitor patients to ensure that infectious disease consultant reports are obtained and timely reviewed, and that consultant recommendations thereafter are implemented. At some facilities, patients may have had numerous infectious disease consultations over a period ofa year, with no report being
36

produced and filed. Thus, the physician is unaware ofconsultant recommendations. The physicians' repeated lack ofeffort to obtain consultant reports and laboratory tests raises serious, systemic concerns. At Pel-Frazier unit, one patient had been prescribed the same antiretroviral regimen for 7 years, and had been failing therapy for at least 5 years. His condition was clearly deteriorating; yet no effective action was taken to improve his condition. At several facilities, health records showed that patients had developed pneumocystis pneumonia, a preventable infection, because the physician had not prescnl>ed prophylaxis. Clinicians discontinued antiretroviral therapy for patients who were nonadherent to medications due to side effects, rather than treating the side effects or working with the infectious disease consultant to find a regimen with fewer side effects. Nurses routinely rewrite medication orders; sometimes committing errors by leaving offone of the antiretroviral medications.
This practice will almost certainly lead to mv drug resistance and reduce future
treatment options for patients. D) MRSA: In August of2003 the Columbus Dispatch began a series ofarticles on healthcare in the Ohio correctional system. An investigation completed with WBNS-TV identified a system ofquestionable care focusing on a 19-year-old Pickaway inmate who died oftoxic shock syndrome as a result ofan undiagnosed methicillin resistant Staphylococcus Aureus infection (MRSA). ODRC implemented a medical protocol following this death to insure that wounds would be cultured to isolate the organism(s) involved and also to identify the familiesltypes of medications that could be most effective in treating the identified organism. Unfortunately, this positive step alone has not proven to be enough to curb the occurrence
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ofthis ·institutional' or nosocomial infection. ODRC now tracks by institution the number ofMRSA cases found. Pickaway Correctional Institution continues to account for 23% ofMRSA cases. For the eleven months where data is available there have been 494 diagnosed cases, 115 at Pickaway. ODRC, currently, conducts no surveillance studies; that is, the routine and orderly collection ofinfonnation regarding the occurrence ofa disease. Each institution has an Infection Control Coordinator identified and there is a position in Central Office that serves as a resource and/or reference point for these employees. We found no consistency in training and education for these employees and uncovered no evaluation of the data that they submit. Institutionally it is used to identify endemic rates and to identify high and low risk areas. Data from surveillance is used to identify clusters or epidemics when established thresholds for disease occurrence are exceeded. The assessment and evaluation ofthis data may result in changes in process or procedure to control the spread ofdisease. As part ofgathering data, Infection Control nurses can reinforce applicable protocols (e.g., hand washing, isolation techniques, cleaning) and identity new or continuing problems. Included in the data gathering process is a review ofthe nursing care plan (non-existent in most facilities surveyed) and an evaluation ofthe level ofcare being provided by licensed staff (there was no evidence that this competency factor is evaluated). Infection rates across institutions can be compared using the same definitions for all infections for all facilities. Using the number ofinfections (numerator) and the total number ofinmate days or the number ofinmates at risk (denominator) may then identity
38

infection rates. Infection rates by site, service, organism and procedure are then tallied. A summary ofantibiotic sensitivity patterns may also aid clinicians in selecting proper antimicrobial therapy. Basic analysis includes: • Incidence-the number of new cases ofa disease in a population at risk over a
specified period oftime; • Prevalence-the number of persons with a disease (newly acquired or not) at a given
time; • Attack rate-the number ofnew cases in a population exposed to a particular risk. This information should be shared both within the institution and across the correctional system so that individual performance can be reviewed and potential problem sites can be identified. Based on ODRC's current data collection and identification it appears that the attack rate is the only area addressed. It should also be noted that hand washing before and after each inmate is examined and the proper cleaning of equipment can significantly reduce the occurrence ofMRSA. This procedure is required not only for all staff (clinicians, custody etc.), but also for all inmates. There are minimal hand washing facilities for staff(alI stafl) and even more meager resources for the inmate population. Kitchens and food preparation areas need to be monitored closely as do the temperatures for cleansing ofutensils, cookware etc. ODRC has made some initial, albeit limited, steps to address this costly and potentially deadly concern. The effective education and use ofInfection Control Coordinators and the emphasis on continuity ofcare for primary providers along with standard procedures (e.g. hand washing) should be enhanced immediately. The cost ofdoing so should be
39

measured against the decrease in the occurrence ofMRSA, the decrease in the use of antIbiotics and the decrease in hospital or more intensive level ofcare days. 14. Infirmary: Infirmary care policy is addressed in the Medical Services Policy (68-MED01). The policy does not provide written medical criteria for placing patients in the infirmary (e.g., poorly controlled diabetics without ketoacidosis, stable asthmatics requiring intermittent breathing treatments, etc). Rather, the policy vaguely states only that "placement shall be limited to short-term observation." The policy states that patients will be within sight or sound ofa staffmember at all times, however at SOCF, due to inadequate staffing, nurses are not assigned to be present in the infirmary. The policy does not address admission requirements or the frequency of medical and nursing monitoring.
As was noted with regard to "intrasystem transfers," there is a protocol for this area as
well: B-23, "Guidelines for Routine Care ofInfirmary Admission." The same problems, however, exist as to actuaI implementation. Admitting nurses do not routinely notifY the doctor to obtain orders such as vital signs, medication, and guidance as to what clinical criteria should lead to physician renotification. The nurses do not routinely conduct admission assessments nor do they monitor patients each shift. At PCI-Frazier unit, the infirmary physical plant is cramped and cluttered. The beds, mattresses and night tables are in poor condition. It was reported that additional beds were recently added to the infirmary, decreasing the physical space available to each inmate. Some beds are spaced less than 12-18 inches apart. The inmates keep their personal property at their bedside, including food, adding to the cluttered appearance.
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The clutter ofthe environment contributes to poor sanitation ofthe unit. The bathrooms do not have handicapped shower access. A regular bathtub is available along with an elevated platform that is designed for transferring patients from a gurney for bathing. However, the platform reportedly is never used. There is one handicapped access wbirlpoollocated in a long-term care unit in the back ofward 1. At Frazier, nurses do not perform admission assessments, develop care plans., or write discharge summaries. The physician does not document admission notes, perform an admission history and physical, or write discharge summaries. The records reflect that the physician does not monitor and treat patients in a timely fashion for poorly controlled illnesses, implement consultant recommendations, or see patients timely following their return from CMC or OSu. 15. Medical EQuipment: Medical equipment (otoscopes, syphgmomanometers, exam tables, etc.) are available in limited number, which means that often only one person at a time can conduct an evaluation, thus compromising efficiency given the limited number of staff available. This is an area where a more detailed study would be needed before detailed systemic remediation was undertaken. National standards here are either lacking or very general as in the language of"as determined by health care authorities." At some facilities., emergency medical equipment is not checked daily to ensure its readiness. There is no standardization ofequipment and supplies to be kept in emergency response bags, nor a requirement to periodically check the bags to ensure that equipment and supplies are present and functional. 16. Medical Records: Medical records were often disorganized, and information difficult to locate. As noted earlier, there is insufficient staffand no specific designated position for
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this important task, even at CMC whose primary mission is medical. There is a serious and systemic problem with retrieval and filing oflaboratory and consultant reports, which repeatedly cause delays in care. 17. Staffing: Physician hours allocated to DRC facilities is inadequate. Nursing staffing is inadequate at medical facilities where medical acuity is high (pCI-Frazier Unit and Hocking). However it was not possible at this point in time to precisely determine the numbers ofstaffthat would be required to provide adequate services. Nursing staffing may be inadequate at other DRC facilities, particularly given that nurses are required to perform additional duties such as medical records retrieval and filing. A more complete analysis, including numbers and distribution, was beyond the scope ofthe MIT review. Although we do not have precise figures, we came to the view that there is inadequate support/secretarial staffthroughout the system. This helps explain why, when we are on site, requested information may be orally explained but not appear on the chart. This is another fairly important personnel issue that should be more closely studied before final conclusions are reached, or certainly before any re-staffing occurs. Support stafffor secretarial and medical records services appear to be below minimums in the majority of facilities visited (CRC seems to be an exception but that should be more closely evaluated). Support staff frequently maintain inmate files and may also be responsible for scheduling outside appointments and transportation. There does not appear to be a tickler file system for follow up to insure that all test results and consultation reports are received and available at the parent institution when the inmate returns. This results in 'lost' information, untimely follow up and errors in medications, etc. The persistent lack ofinformation seriously inhibits access to
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reasonable and timely care and seems at least partly attributable to the dearth of support staff. 18. Mortality Review: One expert (Dr. Jack Raba) notes that mortality reviews can be essential indicators ofthe quality ofa correctional health care program. Thus, "Systematic collection ofepidemiological mortality data must be an essential component ofan adequate prison ...program.,,4 A special study by Barbara Peterson concluded: "Simply stated, there is no quality assurance or improvement process in place. There is no documentation available that suggests even the simplest tenets ofthe existing protocol for mortality reviews are addressed at the institutional or Central Office level. This system does encompass the basic elements ofwhat could be an effective and cost efficient healthcare program but it has been severely compromised by the lack ofa meaningful source ofdirection and support." That report is attached as Appendix C. In addition, Ron Shansky, M.D., reviewed eleven (11) ofthe thirteen cases identified for review by Barbara Peterson and referred to at p. 3 of her Report (Appendix C). Dr. Shansky's analysis is appended as Appendix D. In sum, Dr. Shansky's detailed review discloses a pattern of failure to perform physical examinations, delays in physician's notes, delays (or omissions) in physicians' visits and monitoring, and the absence ofa close look at the performance ofvarious physicians. What follows is a verbatim reproduction ofCase #2 from the Shansky review:
4 Jack Raba, M.D., Mortality in Prisons and Jails. p. 301 in Clinical Practice in Correctional Medicine (Michael
Puisis, D.O., ed, 1998).
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Inmate K.B.5entered the reception center in 1995 at the age of20 with a history ofasthma and obesity. He had an initial elevated blood pressure but later his pressure was reported as nonnal, without any medications. On 8/20/03, he complained ofpain when breathing deeply and coughing up a small amount of blood in his sputum. His pulse was 120; his pulse oximeter reading was 94%. A nurse saw him, and despite his coughing up blood and an elevated pulse of 120, he was told to sign up for sick call. The next day, he again complained ofthe same symptoms; his pulse was 92, and he had an abnormal pulse oximeter reading. He was again told to sign up for sick call. On August 25, there is a note that he is to return for follow-up with the physician regarding his chest x-ray. An x-ray had been ordered by a physician on August 21, although the patient hadn't been seen. He was also given a lay-in and antibiotics. The x-ray revealed a large pneumonia or lung mass. A physician note on August 25 indicates "Patient feels better. Return in a month." On September 15, the inmate again complained ofpersistent cough with blood-tinged sputum. The physician note says "Persistent cough. Chest clear. Pneumonia improved." He was placed on a different antibiotic. He was not seen again by a physician until February of2004, although he did have repeat x-rays which showed some improvement and clearing of the pneumonia, although there was residual pathology in the base ofthe lung field. On February 4, 2004, he complained ofa chest cold with slight
5 Inmate number on file with Fred Cohen. 44

chest pain. His blood pressure was elevated. His other vital signs were normal. This was treated symptomatically. At 5:55 p.m. the same day, he complained of severe chest pain and difficulty breathing. His pulse was rapid and thready; the pulse rate was 148 and his pulse oximeter reading was 72%. He was placed on high-dose oxygen. He complained at 5:55 p.m. ofdifficulty breathing and feeling weak. At 6: 10, the nurse told the officer to call the ambulance, although because of confusion between the control center and the duty officer, the ambulance was not called until 6:20 p.m. The inmate stopped breathing at 6:40, and the ambulance arrived five minutes later. He had an autopsy which revealed acute and chronic pulmonary emboli. It is entirely probable that his initial pneumonia and subsequent problems were all related to chronic mUltiple emboli which could have been detected by physician evaluation and the ordering ofa lung scan; however, this did not occur. By way of contrast, Lindsay A. Hayes in Technical Assistance Report, page 27 (Nov. 19, 2004), after a review ofrecent prison suicides concludes, "The ODRC has both excellent policies and practices regarding the mortality review process following an inmate suicide." He found such review the strength ofthe DRC suicide prevention policy. 19. Physician Leadership and Physician Monitoring: This is a program run by nurses. At all sites, the number ofphysician hours was inadequate; including supervisory physician hours at Central Office. This scarcity resulted in having to engage in a form ofrationing with nurses filling the management gap ofthe inadequate physician coverage. What appeared to result was that the focus ofcare was to see as many patients as possible
45

without regard to the quality ofthe encounter and to shift focus from monitoring patients with serious or acute illness to making sure all sick call patients were seen regardless of the acuity level. As already mentioned, another result ofthe rationing is that few physicians~patient encounters resulted in an actual physical examination ofthe patient and little ifany history ofthe patient's illness was obtained. Nurses therefore were in effect managing patients with chronic illnesses. Patients with serious illness (especially at CMC and Hocking) were not afforded the level of physician monitoring necessary for their illness. In addition, nurses appear to direct the selection and intervals of physician encounters. Physicians are not directing care in the sense that they do not decide when and how often patients with more serious needs are seen. The lack ofphysician hours also resulted in lack ofsupervision ofphysician quality as well and clinical direction ofthe program. Physician quality was not monitored at any site and therefore, inadequate physician care was never identified or reviewed with an eye toward improving physician practice. Lack of physician involvement in leadership functions resulted in inadequate policies and procedures and lack ofimprovement ofbasic clinical infrastructure problems that plague the system (e.g. seldom having a consultation report on the chart). The state medical director should be responsible for promulgating all clinical policies and guidelines. This position should ultimately be responsible for all clinical care. All clinical staffshould have a dotted line reporting relationship to this position. All physicians working in the system should be aware that their continued employment requires satisfactorily meeting the clinical standards ofthe medical director.
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20. Credentialing: The courts have long held that adequate access to care requires access to an appropriately trained and credentialed clinician. In the free world, when adults have problems such as hypertension, diabetes, or asthma, they go to a physician and are provided services by a physician trained usually in intemal medicine or family practice. Those are the disciplines that provide training and experience in handling adult common chronic problems. None ofus go to see a surgeon, a radiologist, or an anesthesiologist to treat our asthma, our stomach pain, or our headache. Although 800/0 ofthe primary care doctors whose files were reviewed by Dr. Shansky are appropriately trained in primary care, there were approximately 200/0 trained in other, non-primary care disciplines, such as surgery, anesthesia, or some surgical subspecialty. Providing access to these clinicians for primary care needs is not providing access to an appropriately trained and credentialed clinician. This also creates avoidable liabilities for the State.
21. Misc.: While the MIT looked at ORW and the special needs ofwomen, we did not look at the juvenile offender population serving adult time at Madison Correctional Institution. They, ofcourse, have "special needs" based on the age and developmental stage and any remedial effort should accommodate this special group.
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ADDENDUM: Individual Report on Correctional Medical Center (CMC)
Site Visit: November 29,30,2004
INTRODUCTION
The MIT visited CMC on the above dates. The Interim Feedback Session at DRC was
scheduled for December 1. 2004 and was held at that time.
A good deal of effort went into preparing for the December 1st meeting and obviously it was too soon to provide well-organized feedback from the just completed visit to CMC.
Fred Cohen prepared an initial draft ofthe Final Report before MIT members were able to prepare their now completed CMC site visit reports. In the interest of expediency, the report on the CMC visit is treated separately and not integrated into the topic flow of the main body of the Report.
We trust this will result only in a stylistic difference and not otherwise detract from this Report. GENERAL
The Correctional Medical Center Prison houses both males and females up to maximumsecurity custody level. It has a capacity of 121 short-term beds, which are generally used for preor post-hospital admissions, of which 91 were filled. It also has 57 long-term beds, all of which were filled. There are two hospice rooms. For inmates who are admitted to hospice-level services in the period of time just preceding death, cadre inmates stay with the inmates at the bedside for the last 72 hours. There are 54 specially selected cadre inmates. There are 360 inmates who are seen per week for specialty visits, and the average age of the inmates seen is 46.
1

The budget is $35 million. There are 26 registered nurse positions, of which 8 (31 %) are vacant; 26 LPN positions, of which 7 (27%) are vacant, although we were told that they are in the process offilIing those positions. There are two full-time physicians and a part-time physician who works up to 20 hours. One of the full-time physicians is the medical director, and he spends a fair amount oftime responding to questions and concerns from all of the prisons in the field.
As for staff vacancies, there are approximately 35 medical staff vacancies in total and officials are working hard to fill those positions. They attend job fairs and use print advertising. Temporary staff are used as an interim staffing measure.
There were 8 hours per week of psychiatric care available at the time of our visit. Many of these inmate-patients have troubling mental health issues often exacerbated by their physical illness. Sixty-four patients were on the mental health caseload (27 from the long-term unit) at the time of our visit. Fred Cohen spoke with, and was impressed by Dr. Heizleman, the psychiatrist, and recommended to Central Office that his CMC hours be extended by another full day (8 hours).
COHEN'S IMPRESSIONS FROM GROUP SESSIONS
The 16 inmates participating in the two group sessions were generally supportive of the care received at CMC. Only two expressed some reservations. The most frequent complaint was delay; delay as to diagnosis and subsequent care. When care was delivered it was characterized as "good."
Parenthetically, it is interesting to contrast the patients' evaluations with the record reviews by the MIT clinical experts that revealed many problems, some of which were life threatening.
2

The complaint most frequently and vociferously voiced by long and short-term patients related to the Aides. There was story after story of Aides not helping a handicapped patient at the toilet or with a shower; simply ignoring pleas for basic care.
The short-termers consistently complained about inactivity. "There is nothing to do. I want to go back to my home facility!"
Care at CMC and OSU generally were given high marks by these consumers. To my medically untrained eyes, the physical plant and general atmosphere seemed quite good. I felt as though I was in a clinical/hospital setting and not a maximum-security prison, extended care nursing facility.
SHORT TERM CARE UNIT
Dr. Shansky reviewed records of patients on 3-North, the short-term care unit. He was informed that the policy on that unit was that the physician was required as part of the admission orders to indicate the patient's level or acuity status. This level determined the frequency of physician visits, nursing follow-up, etc. In at least four ofthe eight charts reviewed, there was no classification order.
The nurses, by default, classified patients not given a classification order at the lowest level of acuity, independent of the patient's actual acuity level. This resulted in a patient not being seen very aggressively; in fact, the lowest level requires patients be seen no more than once per week. This not only detracted from the care, but resulted in poor bed management, since interventions were delayed.
In summarizing his review ofthe above noted records, Dr. Shansky wrote: My review of the CMC Short-term Unit records indicates that several of the patients entered at a fairly high acuity level but were defaulted to a lower acuity
3

status because no order was written, and therefore they were not timely seen by the physician. When the physician does see them, he seems to be unaware of several oftheir problems and does not address them, whether it's pain, laboratory reports, or chronic disease issues. In my view, the physician who writes most of the notes appears to not have the conscientious focus necessary to respond to the needs of these problems. It is also my view that if physicians are not writing levels of acuity, then the default should be that everyone enters at a high acuity level is seen by the physician within 24 hours and then can be reassessed to a lower acuity level. This was discussed with Dr. Reid, the state Medical Director, and he will look at the options in terms of modifying the current practice.
LONG TERM CARE UNIT
Dr. Puisis evaluated 49 of the 57 patients on the long-term unit and found that 23 of 49 (47%) were patients who were capable of self-care and could have been housed elsewhere. Please consult his CMC report (attached to Dr. Shansky's) for numerous examples.
Eleven of the 49 (22%) patients evaluated did not need nursing care but needed some assistance with movement or devices they used.
There were 15 of the 49 (31 %) who required a long-term nursing unit. Even some of these patients could be properly cared for in a less intensive nursing environment. Frazier's inadequate functioning explains part of the reason for using CMC's more expensive housing.
There appears to be no standard utilization practice for patients on this unit. Exact reasons for placement should be recorded along with a treatment showing any continued need for this unit.
4

Actually, it was seldom ever clear from the medical record why people were on this unit. Dr. Puisis also discusses the numerous problems flowing from the physician disengagement from actively managing patients at CMC.
SPECIALTY CONSULTATIONS, BED-SPACE MANAGEMENT, AND MEDICAL RECORDS
MIT member, Madeleine LaMarre, focused on the above areas each covered in detail in her 13-page report appended hereto.* In sum:
• Although the timeliness of initial clinic appointments did not appear to be excessive (with the exception of gastroenterology and possibly neurosurgery), the frequency of appointment cancellations for all clinic appointments is 25%, that in addition to the built in scheduling delays, represent further delay in diagnosis and treatment of medical conditions. Cardiology, neurology and gynecology in particular were problematic with respect to appointment cancellations.
• Although data regarding gastroenterology and neurosurgery was not provided, access to GJ. and neurosurgery consultations, however is problematic. Delays of9 and 10 months for serious matters were uncovered. (See M. LaMarre individual site visit report for charts showing consultation timeliness from Frazier and Hocking inmates.)
• The absence of adequate or specified medical records staff at CMC aggravates the access to records dilemma.
• OSU Bed Space Management: There appears to be no current DRC mechanism to review appropriateness of admissions and length of hospital stay at OSU Patients are admitted for one reason and worked up for another. This likely increases hospital lengths of stay and hospitalization costs.
• Medical Transportation and HIV Care will be found in her appended full report
5

• There is no active bed space management at CMC either. This may result in lack of beds for inmates returning from OSU, or those at other DRC facilities requiring a higher level bed.
• Acute Care Infirmary: Nurse's stations were dirty, cluttered and disorganized.
Physicians do not conduct meaningful patient history and physical examinations upon admission to the infirmary. Serious health problems are ignored. • Health Care Record Review: Six records were reviewed and each had significant problems. One such review is reproduced here (the others, of course) are located in the Appendix A.
D.L.1
This 58-year-old was admitted to CMC on 10/5/2004 following a coronary artery bypass graft x 2 in September 2004 that was complicated by MRSA osteomyelitis of the sternum and renal insufficiency. He also has diabetes, hypertension, dyslipidemia, bilateral foot ulcerations, and COPD. Upon admission, the nurse wrote an admission note. The physician saw him on 10/612004 noting two large wounds in his chest that were draining serosanguinous fluid. His assessment was stable and his plan was "see orders." He saw him again eight days later on 1011412004 and noted that the wound was clean and planned antibiotics for six weeks. On 10119/2004, he noted that the patient's hemoglobin was low at 7.0; two days later, a test showed that he had blood in his stool. The patient's white blood cell count was also increased suggesting possible increase in infection. The physician ordered a test to
I Inmate number on file with Fred Cohen.
6

determine the source ofGI bleeding (ie.,EGD). There are no further physician notes over the next few days. However, on 10/24/2004 at 1825, the patient complained of chest pain. The nurse documented that she would notify the physician but there is no documentation that she did. The patient complained again at 0130 and the nurse documented a possible MI, and sent the patient out to OSU by squad. On 10/29/2004, the patient was readmitted to CMC from OSU, having been diagnosed with pneumonia, acute renal failure secondary to vancomycin nephrotoxicity, and MRSA wound infection. The physician saw him on 111112004 and did not reference his recent hospital admission. His assessment is "reasonably stable." The physician did not reassess the patient's recent anemia and GI bleeding. There are no further physician notes until 11126/2004, however, in the intervening period (according to the OSU discharge summary) on 1119/2004, the patient developed acute GI bleeding (hemoglobin of6.8) and was admitted urgently to OSU intensive care unit where he received blood transfusions. He was discharged back to CMC on November 19, 2004. The discharge summary was not in the record. Summary: The physician did not monitor the patient closely following admission to the unit. This patient had symptoms of acute GI bleeding for which the physician ordered diagnostic studies, however, it appears that inpatient consultations are not treated any differently than outpatient consultations and thus the evaluation was not expedited. Upon the patients return from OSU on 10/29/2004, the physician did not pursue the status of his GI bleeding. From
7

111512004 to 111912004, as the patient's condition deteriorated, nursing notes are minimal. There are no physician notes during this time. The report of the patient's care at OSU was not in the record, thus the physician and nurses had no idea as to what had transpired. The health records are disorganized because there is no one to file the information. The patient returned from OSU on 11119/2004 but the physician did not see the patient until 11126/2004, one week later. MIT member Barbara Peterson concentrated on infection control, medications, and administration, quality assurance, and record reviews.
INFECTION CONTROL
• In October 2004, there were 12 MRSA cases (3 CMC residents, 9 within 24 hours of arrival at CMC).
• Lack of coordination between members managing different portions of the program. • Reporting systems for AIDS, Hepatitis, etc. is consistent with federal and state
guidelines. • No infection control surveillance log. MRSA plan was completed in summer of 2004,
but there is no evidence of approval, implementation or education.
MEDICATIONS AND ADMINISTRATION
• Staff identifying inmates for medication by "recognition" alone does not meet current nursing standards.
• Medication administration records often have blank spots for important information. • There is a questionable acceptance of"human error" in dispensing medication (35 errors
noted since January 2004.) • Medication rooms are small and in need of repair.
8

QUALITY ASSURANCE
• As with other facilities, there is no evidence of CQI initiatives being considered. (See report for CMC efforts.)
• No peer reviews at institutional or departmental level.
RECORDS
• Records are incomplete, hard to read, out of sync with patient care, significant time gaps from the time patients returns to CMC from OSU and receipt of the record of care received at OSu.
CONCLUSION
The above narrative report does not address every issue addressed in the individual reports appended hereto. The significant issues, however, are noted, although the reader/user is advised to consult the full reports.
9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OIDO WESTERN DIVISION

RODNEY FUSSELL, et al., Plaintiffs,
v.
REGINALD WILKINSON, et aI., Defendants.

Case No. C-I-03-704

REPORT: ODRC - DENTAL SERVICES Prepared by: Medical Investigation Team (MIT)
INTRODUCTION

1126/05

As indicated at the meeting of the parties and the MIT on December 1,2004, our study of

dental care did not receive the same detailed attention as medical care during our site visits.

There was no dentist on the MIT nor did we consult with any dentists. Thus, the clinical

expertise that underpins the Medical Report is absent from this document.

Issues related to dental care did, however, frequently emerge in the inmate group sessions

conducted by Fred Cohen. Other MIT members encountered problems related to dental care

while conducting their review of medical records and interviewing staff

The relevant policies were studied and some important data developed primarily with the

help ofMs. Annette Chambers, representing ODRC.

What follows, then, may be viewed as a somewhat incomplete and to an extent

impressionistic Report. Should the parties elect to resolve this litigation in a non-adversarial

1

fashion we feel confident that there is enough here to serve as the basis, for example, of a more comprehensive study and analysis as well as a further review of dental policies and protocols.
Fred Cohen is the principal author and investigator for this document and he accepts responsibility for any ofits shortcomings.
POLICY & FINDINGS
Dental Service Policy, No.: 68-Med.-12, revised 4116/04, is a central dental service provision and, based on our own investigation and a review of the complaint to contractor documents provided to the author, there is a pattern of noncompliance. Section D calls generally for dental screening within seven days of admission and a full dental examination by a dentist
with instructions on oral hygiene and preventive care by dentally trained staff within three
months of admission supported by needed x-rays. On a strictly anecdotalleve~ observation of inmates during site visits disclosed numerous
inmates with missing or obviously rotten teeth. Do these conditions lead to health problems associated with inability to properly eat, to problems caused by stress on remaining or healthy teeth, or to avoidable infections? The writer confesses not to know at this point, but believes this is the type of problem worthy of pursuit in the future.
Dental services are extended by private providers with Steven Huber having the contract for 18 facilities and David Donnelly} four facilities. There is one institutional civil service dentist at ManCi and Dr. Huling, the Dental Director, provides two days of direct care at London.
There is one dental provider listed for each prison regardless of size or function with additional dental staffranging from zero (Hocking, e.g.) to a high of three (ManCi and London).
I Dr. Donnelly may have been replaced at Lebanon. 2

Further investigation revealed that there actually is more than one dentist at various facilities

(number unknown at the moment) but contractually there is a single private provider.

The most consistent complaint from inmates is they never receive such preventive care as routine examinations, cleaning or scaling.2 By policy, no root canals to save teeth are ever

performed. Another complaint (ORW) relates to braces: Ifan inmate enters the system with

braces, the braces are taken off, not adjusted and not replaced.

There is no data available as to the timeframe for an extraction after the need is

established. It was determined that temporary dentures are not provided after teeth are removed

and before the permanent dentures are fitted and in place. This, in turn, leads to questions about

an appropriate, special diet and there is some evidence that it is not provided or at least not

routinely provided. It would be important to know the time lapse between extraction and the

receipt ofthe dentures.

One important indication ofthe quality of dental care is the extraction-restoration ratio.

Annette Chambers kindly obtained that data for the facilities we planned to visit. Those ratios

are as follows:

Dental Extraction: Restoration Ratios3

CCI: Total:

Extractions 258

Restorations

233

Aratioof258:233 (1.1:1)

CMC: Total:

Extractions 115

Restorations

109

A ratio of 115:109 (1.05:1)

~ Root canals are not performed as a matter of policy.
3 CRC, PCI, and ORW had the highest ratios ofextractions to restorations, in the 3 Y2 to 1 area. 3

SOCF: Total:

Extractions 48

Manel: Total:

Extractions 216

weI: Total:

Extractions 48

Leel: Total:

Extractions 115

PCI: Total:

Extractions 300

LoRel: Total:

Extractions 34

eRe: Total:

Extractions 263

Restorations

28

Aratioof48:28 (1.7:1)

Restorations

114

A ratio of216: 114 (1.89:1)

Restorations

54

A ratio of 48:54 (1: 1.25)

Restorations

77

A ratio of 115:77 (1.49: 1)

Restorations

84

Aratioof300:84 (3.57:1)

Restorations

56

A ratio of 34:56 (1: 1.64)

Restorations

70

A ratio of263:70 (3.75:1)

Del: Total:
ORW: Total:
HeF: Total:

Extractions 52
Extractions 361
Ext!!ctions 69

Restorations

35

A ratio of52:35 (1.49:1)

Restorations

111

A ratio of361: 111 (3.25: 1)

Restorations

27

A ratio of69:27 (2.55:1)

4

At the suggestion ofDr. Shansky, we asked for data on infection control after an extraction. However, we learned that this is not data that is compiled. A case-by-case record review would be required to obtain this information.
By policy, the Dental Director must perform a documented peer review ofeach dentist employed or contracted by DRC and an audit of each dental clinic at least once every two years. The author reviewed Dr. HuIing's audits ofthe facilities we were scheduled to visit.
Those Audit Reports are brief- typically 1 or 2 pages - with no evidence ofinmate input and no imperatives; that is, where a problem is noted there are "suggestions," "be sure to's," "should," and so on. There are no "musts" or "wills."
For the most part, staff is congratulated for good work and offered encouragement and at times prodded (e.g., PCI do scaling after acute problems and before restorative work).
There is no overall assessment of compliance with policy or any sort of evaluation of outcomes or levels of inmate-patient satisfaction. That Dr. Huling appears to do this alone may well answer the question - why not?
On the other hand, the Complaint to Contractor and Complaint to Vendor files are rich with information on nonperformance and show a reasonably high level ofinternal oversight: impressions for dentures are found hidden in a dental cupboard; screenings within 7 days consistently reported as not done; agreed upon staffing hours not provided; fillings not done on time; a 75% backlog on fillings; three weeks to answer dental kites and then up to 2 months to be seen; 8 kites taken home by dental assistant; on-site providers simply not showing up as scheduled; dental tool inventories not double-checked, and so on.
5

The Dental Contractor Compliance Database for 2003 and 2004 is quite detailed and further review would be in order to help provide a more complete picture of the pattern of compliance or non-compliance.
With regard to oral surgery, the OSU contract refers to 100 patient visits per month for the oral surgery contract. DRC spent $196,933.71 on this clinic from 8/1/2003 through 6/30/2004.
For the first quarter of fiscal year 2004 (July - Sept.), DRC spent $52,398.15 on the oral surgery clinic.
Inmate James Love, #329-475 of Lebanon Correctional Institution, and a class member, prepared a document for the author entitled "ODRC Systemic Dental Problems Observed." The writer does not by this reference endorse Mr. Love's assertions. He does, however, raise issues worthy offurther investigation. In sum, he asserts:
1. Dental equipment is not replaced when use exceeds recommended life expectancy, (e.g., cleaning tools too dull).
2. Failure to replace excessively worn cleaning tools presents risk of transmitting Hep-C and AIDS viruses.
3. Lack of advanced dental cleaning equipment endangers the health ofthe inmate population in other ways, e.g., cleaning loose teeth with older equipment (v. ultrasound) could result in the loose teeth being pried out. Again, should this litigation go further and move toward a non-adversarial resolution, it
would be prudent to obtain productivity data with regard to the contract dentists; study dental care requests and then resolution, dates inmates are seen, cancellations or failure to appear, and
6

the like. In addition, inmate education as to dental self-care and the availability of toothpaste, toothbrushes, interdental cleaners, and the like are worthy of study.
There should be further discussion on the utility of preventive measures, measures designed to avoid more expensive procedures thereafter. The writer understands that the case
law does not clearly require such measures and this is suggested as a policy measure only.
Further investigation in this area must include dentist productivity data; how much time is spent with how many patients providing what type of service?
Finally, the author undertook considerable legal research on correctional dental care and was surprised at the amount of case law on point. It is still far less than medical or mental health care, but there is enough available to layout the basic, Eighth Amendment requirements for the area at the proper time.
7

 
 Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 1 of 26
CASREF,CLOSED
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:03−cv−00704−SSB−JGW

Fussell et al v. Wilkinson et al Assigned to: Judge Sandra S Beckwith Referred to: Magistrate Judge J. Gregory Wehrman related Case: 1:12−cv−00144−SSB−SKB Cause: 42:1983 Prisoner Civil Rights
Interested Party
Shannon Haynes

Date Filed: 10/14/2003 Date Terminated: 11/22/2005 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Interested Party William E Martin

Objector Dr Brentley Buchele

represented by Timothy T Tullis Kegler Brown Hill &Ritter − 2 65 E State Street Suite 1800 Columbus, OH 43215−4294 614−462−5400 Email: ttullis@keglerbrown.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Dr Cora McNally

represented by Timothy T Tullis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Ohio State University Medical Center

represented by Timothy T Tullis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Donald L Swearingen, r

represented by Donald L Swearingen, r #230−287 SOCF P.O. BOX 45699 LUCASVILLE, OH 45699−0001 PRO SE

Plaintiff Rodney Fussell

represented by Alphonse Adam Gerhardstein Gerhardstein &Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, OH 45202 513−621−9100 Fax: 513−345−5543 Email: agerhardstein@gbfirm.com TERMINATED: 05/23/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 2 of 26

Plaintiff Gary Roberts

Carol Camp Prison Reform Advocacy Center 1301 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513)421−1108 Email: ccamp@prisonreform.com (Inactive) TERMINATED: 04/05/2004 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David A Singleton Ohio Justice &Policy Center 215 East 9th Street Suite 601 Cincinnati, OH 45202 513−421−1108 Fax: 513−562−3200 Email: dsingleton@ohiojpc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Eric Syler Prison Reform Advocacy Center 617 Vine Street Suite 1301 Cincinnati, OH 45202 513−421−1108 Email: ksyler@prisonreform.com TERMINATED: 08/01/2005 LEAD ATTORNEY
Rickell LaShea Howard Ohio Justice &Policy Center 215 E. 9th Street Suite 601 Cincinnati, OH 45202 513/421−1108 ext 19 Fax: 513−562−3200 Email: rhoward@childrenslawky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) TERMINATED: 05/23/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Camp (See above for address) TERMINATED: 04/05/2004 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David A Singleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 3 of 26

Plaintiff James Love

Dustin J Calhoun Ohio Department of Youth Services 30 West Spring Street 5th Floor Columbus, OH 43215 614−728−7353 Email: Dustin.Calhoun@dys.ohio.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Eric Syler (See above for address) TERMINATED: 08/01/2005 LEAD ATTORNEY
Rickell LaShea Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) TERMINATED: 05/23/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Camp (See above for address) TERMINATED: 04/05/2004 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David A Singleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Eric Syler (See above for address) TERMINATED: 08/01/2005 LEAD ATTORNEY
Rickell LaShea Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Christopher R Bruggeman TERMINATED: 04/18/2005
Intervenor Plaintiff Scott G Mattimore TERMINATED: 06/30/2005

represented by Christopher R Bruggeman Madison Correctional Institute P.O Box 740 London, OH 43140−0740 PRO SE
represented by Scott G Mattimore #A 444−176

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 4 of 26
MCI P O Box 740 London, OH 43140−0740 PRO SE

V.
Defendant
Director Reginald Wilkinson individually and in his official capacity (Ohio Department of Rehabilitation and Correction)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Mancini Ohio Attorney General − 2 Corrections Litigation 150 East Gay Street 16th Floor Columbus, OH 43215−6001 614−644−7233 Fax: 614−728−9327 Email: jmancini@ag.state.oh.us TERMINATED: 08/30/2010 LEAD ATTORNEY
Ryan G Dolan Attorney General of Ohio 150 E. Gay Street 16th Floor Columbus, OH 43215 614−644−7233 Fax: (866) 522−9245 Email: Ryan.Dolan@ohioattorneygeneral.gov TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra L Gorrell Wehrle Ohio Attorney General's Office Criminal Justice Section 150 E. Gay Street 16th Floor Columbus, OH 43215 614−644−7233 Fax: 614−728−9327 Email: debra.wehrle@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
J Eric Holloway Ohio Attorney General's Office Bureau of Criminal Identification and Investigation 1560 SR 56, SW London, OH 43140 740−845−2000 Fax: 866−459−6675 Email: Eric.Holloway@ohioattorneygeneral.gov TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED
Lawrence H Babich Ohio Attorney General 150 E Gay Street 16th Floor

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 5 of 26

Columbus, OH 43215 614−644−7233 Fax: 614−728−9328 Email: larry.babich@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Marianne Pressman 9209 Elizabeth Mason, OH 45040 513−531−3441 Email: mpressman@cinci.rr.com TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes Isaac Wiles Burkholder &Teetor, LLC Suite 700 Two Miranova Columbus, OH 43215−3742 614−221−2121 Fax: 614−365−9516 Email: mlandes@isaacwiles.com ATTORNEY TO BE NOTICED

Defendant
Kay Northrup individually and in her official capacity (Ohio Department of Rehabilitation and Correction)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan (See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address) ATTORNEY TO BE NOTICED

Defendant

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 6 of 26

Dr Bruce Martin individually and in his official capacity (Ohio Department of Rehabilitation and Correction)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan (See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address) ATTORNEY TO BE NOTICED

Defendant
Pedro Obregon individually and in his official capacity (Southern Ohio Correctional Facility, Institution Chief Medical Officer)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan (See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 7 of 26

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mona Parks individually and in her official capacity (Southern Ohio Correctional Facility, Health Care Administrator)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan (See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address) ATTORNEY TO BE NOTICED

Defendant
Vicki Ware individually and in her official capacity (London Correctional Institution, Health Care Administrator)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 8 of 26

(See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dr. James McWeeney individually and in his official capacity (London/Lebanon Correctional Institution, Institution Chief Medical Officer)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan (See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 9 of 26

ATTORNEY TO BE NOTICED

Defendant
Cindy Lawson individually and in her official capacity (Lebanon Correctional Institution, Health Care Administrator)

represented by Dustin J Calhoun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Mancini (See above for address) TERMINATED: 08/30/2010 LEAD ATTORNEY

Ryan G Dolan (See above for address) TERMINATED: 08/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra L Gorrell Wehrle (See above for address) ATTORNEY TO BE NOTICED

J Eric Holloway (See above for address) TERMINATED: 05/09/2012 ATTORNEY TO BE NOTICED

Lawrence H Babich (See above for address) ATTORNEY TO BE NOTICED

Marianne Pressman (See above for address) TERMINATED: 02/11/2008 ATTORNEY TO BE NOTICED

Mark David Landes (See above for address) ATTORNEY TO BE NOTICED

Movant David L Easley

Movant
Anthony Hoepf TERMINATED: 03/09/2005

represented by Anthony Hoepf #259−692 SOCF P O Box 45699 Lucasville, OH 45699−0001 PRO SE

Movant
Kenneth Jay Wilson, r TERMINATED: 09/02/2004

represented by Kenneth Jay Wilson, r 1507 Hazle Wood Warren, OH 44484 PRO SE

Movant Daniel Wilson

represented by Daniel Wilson A260−074 OHIO STATE PENITENTIARY

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 10 of 26

878 Coitsville−Hubbard Road Youngstown, OH 44505 PRO SE

Movant Benjamin Hendricks

represented by Benjamin Hendricks A553599 PICKAWAY CORRECTIONAL INSTITUTION P.O. Box 209 Orient, OH 43146 PRO SE

V.
Intervenor
Michael A Kelley TERMINATED: 09/02/2004

represented by Michael A Kelley 7310 East Broad St Blacklick, OH 43004 PRO SE

Date Filed 10/14/2003
10/14/2003 10/16/2003 10/16/2003 10/21/2003 12/16/2003 12/19/2003 12/19/2003 12/24/2003
01/09/2004 01/09/2004

# Docket Text
1 Class Action COMPLAINT against all defendants (Filing fee $ 150. Receipt No. 420529), filed by Plaintiffs Rodney Fussell, James Love, and Gary Roberts (Attachments: # 1 Exhibit A−C# 2 Civil Cover Sheet # 3 Filing Fee Receipt)(kej, ). Modified on 10/16/2003 (tt, ). (Entered: 10/15/2003)
2 MOTION for admission pro hac vice of attorney Carol R Camp by Plaintiffs (Attachments: # 1 Certificates Of Good Standing # 2 Receipt #420531 in the amount of $50.00 for payment of application fee)(tt, ) (Entered: 10/17/2003)
3 NOTICE Of Placement on the CM/ECF system (tt, ) (Entered: 10/16/2003)
4 GENERAL ORDER Of Reference by Judge Sandra S Beckwith REFERRING CASE to Duty Magistrate Judge (tt, ) (Entered: 10/16/2003)
5 ORDER granting 2 Motion for Leave for Carol R. Camp to Appear Pro Hac Vice as co−counsel for pltfs. Signed by Judge Sandra S Beckwith on 10/21/03.(mb) (Entered: 10/21/2003)
6 MOTION to Certify Class by Plaintiffs Rodney Fussell, Gary Roberts, James Love. Responses due by 1/9/2004 (Gerhardstein, Alphonse) (Entered: 12/16/2003)
7 NOTICE of Appearance by Joseph Matthew Mancini Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson (Mancini, Joseph) (Entered: 12/19/2003)
8 NOTICE of Appearance by Marianne Pressman Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson (Pressman, Marianne) (Entered: 12/19/2003)
9 STATUS REPORT Parties proposed case management plan and request for status conference by Plaintiffs Rodney Fussell, James Love, Gary Roberts, Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson. (Attachments: # 1 Text of Proposed Order)(Gerhardstein, Alphonse) (Entered: 12/24/2003)
NOTICE by clerk: Status Conference on the proposed case management plan is set for 1/23/2004 at 11:00 AM before Sandra S Beckwith in Room 810. (mb) (Entered: 01/09/2004)
10 NOTICE of Appearance by J Eric Holloway Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson (Holloway, J) (Entered: 01/09/2004)

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01/09/2004 01/10/2004 01/21/2004 02/27/2004 03/01/2004 03/08/2004 03/10/2004 04/02/2004
04/05/2004 04/14/2004 04/14/2004 05/12/2004 05/28/2004
05/28/2004 06/03/2004 06/29/2004 06/30/2004
07/12/2004

11 NOTICE by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson of Waiver of Service of Summons and Complaint (Holloway, J) (Entered: 01/09/2004)
12 NOTICE of Appearance by J Eric Holloway Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson (Holloway, J) (Entered: 01/10/2004)
13 ANSWER to Complaint with Jury Demand by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson.(Holloway, J) (Entered: 01/21/2004)
Case docket corrected to reflect that this case is now referred to Visiting Magistrate Judge David S Perelman. Judge Susan M. Novotny no longer assigned to the case. (art, ) (Entered: 02/27/2004)
NOTICE by clerk: The status conference scheduled for March 19 is RESCHEDULED from 2:00 p.m. TO 2:30 p.m. before J. Beckwith in room 810. (mb) (Entered: 03/01/2004)
14 AGREED ORDER granting 6 Motion to Certify Class on 1/23/04. Signed by Judge Sandra S Beckwith on 3/8/04, nunc pro tunc. (mb) (Entered: 03/08/2004)
NOTICE by clerk: At the parties' request, the status conference of 3/19/04 is RESCHEDULED from 2:30 p.m. TO 9:00 AM before J. Beckwith. (mb) (Entered: 03/10/2004)
15 AMENDED DOCUMENT by Plaintiffs Rodney Fussell, James Love, Gary Roberts, Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson. Revised Proposed Case Management Plan. (Attachments: # 1 Notice to Potential Class Members# 2 Agreed Protective Order)(Gerhardstein, Alphonse) (Entered: 04/02/2004)
NOTICE by clerk: The conference of 4/5/04 is RESCHEDULED for 4/12/04 at 9:00 a.m. This conference will be conducted by phone and will be initiate by the court.(mb) (Entered: 04/05/2004)
16 PROTECTIVE ORDER. Signed by Judge Sandra S Beckwith on 4/13/04. (mb) (Entered: 04/14/2004)
17 NOTICE TO POTENTIAL CLASS MEMBERS signed by the Clerk of Court. (mb) (Entered: 04/14/2004)
Judge Timothy S. Black added. Judge David S Perelman no longer assigned to case. (jal, ) (Entered: 05/12/2004)
18 ORDER ordering the clerk to file the letter received from an inmate at the London Corr. Inst. redacting the inmate's name and directing the clerk to schedule a conference concerning the letter. Signed by Judge Sandra S Beckwith on 5/28/04. (mb) (Entered: 05/28/2004)
19 Letter from an inmate (inmate's name redacted) at London Correctional Institution re: shredding of documents. (mb) (Entered: 05/28/2004)
NOTICE by clerk: A telephone conference on the inmate letter is scheduled for 6/10/04 at 3:30 PM before J. Beckwith. The court will initiate the call to counsel. (mb) (Entered: 06/03/2004)
20 MOTION to become certified class plaintiff by David Easley (tt, ) (Entered: 06/30/2004)
NOTICE by clerk: At the 4/12/04 conference, a further status conference was set for 7/30/04 at 2:00 PM. Since that date, numerous conferences have taken place. Therefore, the conference set for 7/30/04 is VACATED.(mb) (Entered: 06/30/2004)
21 RESPONSE in Opposition re 20 MOTION to become certified class plaintiff by David Easley filed by Plaintiffs (Gerhardstein, Alphonse) Modified on 7/14/2004 (tt, ). (Entered: 07/12/2004)

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07/13/2004 07/22/2004 07/26/2004 07/26/2004 07/29/2004 08/02/2004 08/02/2004 08/09/2004 08/16/2004 08/17/2004 08/18/2004
08/24/2004 08/25/2004 08/26/2004 08/27/2004 08/30/2004 09/02/2004
09/24/2004

22 RESPONSE in Opposition re 20 MOTION by David Easley to become certified class plaintiff filed by Defendants (Mancini, Joseph) Modified on 7/14/2004 (tt, ). (Entered: 07/13/2004)
23 MOTION to be added as a plaintiff in this action by Anthony Hoepf (tt, ) (Entered: 07/23/2004)
24 MOTION to Intervene by Intervenor Michael A Kelley Jr. (Attachments: # 1 Exhibits (Part I)# 2 Exhibits (Part II))(tt, ) (Entered: 07/27/2004)
25 MOTION for Leave to Proceed in forma pauperis by Intervenor Michael A Kelley. (tt, ) (Entered: 07/27/2004)
26 MOTION for Leave to File Declaration by Movant Kenneth Jay Wilson and to be included as a class member. (Attachments: # 1 Proposed Declaration of Kenneth Jay Wilson)(tt, ) Modified on 8/27/2004 (tt, ). (Entered: 07/29/2004)
27 RESPONSE in Opposition re 23 MOTION to be added as a plaintiff and amend complant by class member Hoepe filed by Plaintiffs (Gerhardstein, Alphonse) Modified on 8/3/2004 (tt, ). (Entered: 08/02/2004)
28 RESPONSE in Opposition re 24 Michael A. Kelly, Jr.'s MOTION to Intervene filed by Plaintiffs (Gerhardstein, Alphonse) Modified on 8/3/2004 (tt, ) (Entered: 08/02/2004)
29 REPLY to Response to 24 MOTION to Intervene filed by Intervenor Michael A Kelley. (Attachments: # 1 Exhibits A − B# 2 Exhibit C)(tt, ) (Entered: 08/11/2004)
30 RESPONSE in Opposition re 23 MOTION by Anthony Hoepf to be added as a plaintiff filed by Defendants (Mancini, Joseph) Modified on 8/18/2004 (tt, ). (Entered: 08/16/2004)
31 RESPONSE in Opposition to 24 Pro Se Michael Kelley's MOTION to Intervene filed by Defendants (Mancini, Joseph) Modified on 8/18/2004 (tt, ) (Entered: 08/17/2004)
32 RESPONSE in Opposition to 26 Pro Se Kenneth Jay Wilson's MOTION for Leave to File Declaration filed by Defendants ; Defendants also request document be stricken (Attachments: # 1 Exhibit A, Offender Data)(Mancini, Joseph) Modified on 11/2/2004 (tt, ). (Entered: 08/18/2004)
33 RESPONSE in Opposition re 24 Michael A Kelley Jrs' MOTION to Intervene filed by Proposed Defendants Ohio State University Medical Center, Dr Cora McNally, M.D., and Dr Bentley Buchele, M.D.. (tt, ) (Entered: 08/25/2004)
34 Reply re 31 attorney Joseph M Mancini's Response in Opposition to Motion to Intervene by Intervenor Michael A Kelley. (Attachments: # 1 Exhibits A − B # 2 Exhibit C)(tt, ) (Entered: 08/26/2004)
35 REPLY to Response to 26 MOTION for Leave to File Declaration and to be included as a class member filed by Movant Kenneth Jay Wilson. (tt, ) (Entered: 08/27/2004)
36 NOTICE of Appearance by Keith Eric Syler Plaintiffs Rodney Fussell, Gary Roberts, James Love (Syler, Keith) (Entered: 08/27/2004)
37 Reply re 33 Opposition filed by Proposed Defendants Ohio State University Med Center, Dr Cora McNally, and Dr Bentley Buchele with respect to Motion to Intervene by Intervenor Michael A Kelley. (tt, ) (Entered: 08/30/2004)
38 ORDER finding as moot 20 Motion, finding as moot 23 Motion, denying 24 Motion to Intervene, denying 25 Motion for Leave to Proceed in forma pauperis, striking 26 Motion for Leave to File declaration to be included as a class member. Signed by Judge Sandra S Beckwith on 9/2/04. (mb) (Entered: 09/02/2004)
40 NOTICE OF APPEAL filed by Intervenor Michael A Kelley as to 38 Order on Motion for Miscellaneous Relief,,,, Order on Motion to Intervene,, Order on Motion for Leave to Proceed in forma pauperis,, Order on Motion for Leave to File.***Directed to file as Notice of Appeal by US Court of Appeals*** (Attachments: # 1 Exhibit Order)(kej, ) (Entered: 10/05/2004)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 13 of 26

10/01/2004 10/07/2004
10/20/2004 11/09/2004
11/10/2004
11/23/2004 11/29/2004 12/06/2004 12/10/2004 02/14/2005 02/25/2005 02/25/2005 03/01/2005 03/02/2005
03/07/2005
03/09/2005 03/11/2005

39 Letter from USDC, Southern District of Ohio, to Michael A Kelley Jr. returning brief submitted on 9/24/2004 ; Motion for leave to intervene was denied on 9/2/2004 (tt, ) (Entered: 10/01/2004)
0 Letter from USDC to Anthony Hoepf returning filing recently submitted entitled "Motion to Correct" ; Plaintiff is represented ; Filings to be submitted to the Court by attorney of record (tt, ) certified mail receipt #7002 0860 0000 1408 7579 Additional attachment # 1 added on 10/15/2004 (tt, ) (Entered: 10/07/2004)
USCA Case Number 04−4275 for 40 Notice of Appeal, filed by Michael A Kelley. (kej, ) (Entered: 10/20/2004)
41 Letter from Mary Brown to counsel scheduling a telephone conference for 11/10/04 at 4:30 PM on Dennis Wolfel's letter of 10/25/04 before J. Beckwith. (Exhibit (1): Inmate Wolfel's Letter). (mb) Modified on 11/9/2004 (mb). (Entered: 11/09/2004)
42 Unopposed MOTION for Leave to incorporate additional language into the Agreed Protective Order { Proposed Entry of Supplemental Order with respect to Agreed Protective Order attached) by Plaintiffs (Attachments: # 1 Text of Proposed Order)(Syler, Keith) Modified on 11/17/2004 (tt, ). (Entered: 11/10/2004)
43 ORDER granting 42 Pltfs' Motion to Supplement the Agreed Protective Order previously filed (doc. 16). Signed by Judge Sandra S Beckwith on 11/23/04. (mb) (Entered: 11/23/2004)
44 MOTION for Leave to Proceed in forma pauperis on Appeal by Intervenor Michael A Kelley. (tt, ) (Entered: 12/01/2004)
45 ORDER transferring 44 Motion for Leave to Proceed in forma pauperis to the Court of Appeals for ruling. Signed by Judge Sandra S Beckwith on 12/6/04. (mb) (Entered: 12/06/2004)
46 ORDER of USCA DISMISSING 40 Notice of Appeal filed by Michael A Kelley (tt, ) (Entered: 12/16/2004)
47 MOTION to Intervene by Christopher R Bruggeman and Demand for Jury Trial. (Attachments: # 1 Appendix and Exhibits A − G # 2 Exhibits H − J # 3 Exhibits K − M)(tt, ) (Entered: 02/15/2005)
48 RESPONSE in Opposition re 47 MOTION to Intervene of Christopher R. Bruggeman filed by Plaintiffs (Syler, Keith) Modified on 2/28/2005 (tt, ). (Entered: 02/25/2005)
49 MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order by Pro Se Intervenor Plaintiff Christopher R Bruggeman. (tt, ) (Entered: 02/25/2005)
50 Letter to the USDC at Cincinnati from Supreme Court of the United States ; Petition for writ of certiorari in case Michael A Kelley, Jr. v Wilkinson, e tal., was placed on the docket 2/2/2005, Case No 04−8475 (tt, ) (Entered: 03/02/2005)
51 RESPONSE in Opposition re 47 Christopher R Bruggeman's MOTION to Intervene as a Right Pursuant to Fed.R.Civ. P. Rule 24(a) filed by Defendants ; Parties respectfully join in plaintiffs reasons set forth in their opposition brief (Mancini, Joseph) Modified on 3/3/2005 (tt, ). (Entered: 03/02/2005)
52 MOTION for Extension of Time to File Response/Reply as to 51 Defendants Response in Opposition to Motion to Intervene and 48 Plaintiffs Response in Opposition to Motion to Intervene ; New date requested 4/11/2005 by Intervenor Plaintiff Christopher R Bruggeman. (tt, ) (Entered: 03/08/2005)
53 ORDER granting 52 Intervenor Bruggeman's Motion for Extension of Time to File Reply to his motion to intervene. Reply due 3/25/05. Signed by Judge Sandra S Beckwith on 3/9/05. (mb) (Entered: 03/09/2005)
54 RESPONSE in Opposition re 49 MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order of Christopher R. Bruggeman filed by Plaintiffs (Syler, Keith) Modified on 3/28/2005 (tt, ). (Entered: 03/11/2005)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 14 of 26

03/11/2005 03/11/2005
03/17/2005 03/22/2005 03/23/2005 04/06/2005 04/15/2005 04/18/2005 04/27/2005 05/03/2005
05/05/2005 05/13/2005
05/17/2005 05/24/2005
05/27/2005
06/23/2005

55 STATUS REPORT and Notice of Manual Filing of Medical Investigation Team Report by Plaintiff Rodney Fussell. (Syler, Keith) Modified on 3/28/2005 (tt, ). (Entered: 03/11/2005)
Clerk has received the Ohio Department of Rehabilitation and Correction Medical Services Final Report of Findings filed manually by Plaintiffs ; The document is voluminous in size and has been placed in an accordion folder with the office file (tt, ) (Entered: 03/12/2005)
56 RESPONSE in Opposition re 49 MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order of Christopher Bruggeman filed by Defendants (Mancini, Joseph) Modified on 3/18/2005 (tt, ). (Entered: 03/17/2005)
57 REPLY to Response to 47 MOTION to Intervene filed by Intervenor Plaintiff Christopher R Bruggeman. (tt, ) (Entered: 03/23/2005)
58 REPLY to Response to 49 MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order filed by Intervenor Plaintiff Christopher R Bruggeman. (Attachments: # 1 Appendix)(tt, ) (Entered: 03/23/2005)
Judge Timothy S. Black no longer assigned to case. (jl, ) (Entered: 04/06/2005)
60 Letter from Supreme Court of the United States denying petition for a writ of certiorari (tt, ) (Entered: 04/18/2005)
59 ORDER denying 47 Christopher R. Bruggeman's Motion to Intervene, striking 49 Motion for Preliminary Injunction, striking 49 Motion for TRO. Signed by Judge Sandra S Beckwith on 4/18/05. (mb) (Entered: 04/18/2005)
61 MOTION for Certification of 59 Order denying request for intervention as a final judgment for purposes of an interlocutory appeal by Christopher R Bruggeman (tt, ) (Entered: 04/29/2005)
62 Letter from USDC at Cincinnati to Anthony Hoepf ; Per direction of the Court Mr Hoepf is advised that documents received by the Clerk in this case have been forwarded to Plaintiffs counsel ; Mr Hoepf has been advised to submit future documents directly to counsel and any further submissions to the Court will be handled in this same manner (tt, ) Additional attachment # 1 Certified Return Receipt added on 5/9/2005 (tt, ) (Entered: 05/03/2005)
63 MOTION to Intervene by Scott G Mattimore. (Attachments: # 1 Appendix and Exhibits A − G # 2 Exhibits H − L)(tt, ) (Entered: 05/06/2005)
64 RESPONSE in Opposition re 61 MOTION for Certification of Order denying request for intervention as a final judgment for purposes of an interlocutory appeal filed by Plaintiffs (Syler, Keith) Modified on 5/16/2005 (tt, ). (Entered: 05/13/2005)
65 RESPONSE in Opposition re 61 MOTION for Certification of Order denying request for intervention as a final judgment (Mancini, Joseph) Modified on 5/19/2005 (tt, ). (Entered: 05/17/2005)
66 MOTION for Extension of Time to File Response/Reply in support of 61 MOTION for Certification of Order denying request for intervention as a final judgment for purposes of an interlocutory appeal ; New date requested 6/24/2005 by Intervenor Plaintiff Christopher R Bruggeman. (tt, ) (Entered: 05/24/2005)
NOTATION ORDER granting 66 Bruggeman's Motion for Extension of Time to File Response to 66 MOTION certification of Order denying request for intervention as a final judgment for purposes of an interlocutory appeal re 59 Order on Motion to Intervene, etc. Signed by Judge Sandra S Beckwith on 5/27/05. (mb) (Entered: 05/27/2005)
67 Letter from Clerk, USDC at Cincinnati returning letter submitted to the Court and directing Mr Love to submit correspondence directly to counsel for Plaintiffs (tt, ) Additional attachment # 1 Certified Mail Receipt added on 6/23/2005 (tt, ). Additional attachment # 2 Certified Return Receipt added on 6/29/2005 (tt, ). (Entered: 06/23/2005)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 15 of 26

06/27/2005 06/29/2005 06/30/2005 06/30/2005 07/05/2005 07/27/2005 07/29/2005 09/19/2005
09/22/2005
10/06/2005 10/07/2005
10/07/2005 10/13/2005 10/13/2005 10/13/2005 10/14/2005
10/17/2005 10/18/2005

68 Letter from Supreme Court of the United States denying petition for rehearing (tt, ) (Entered: 06/29/2005)
69 REPLY IN SUPPORT OF 61 MOTION certification of Order denying request for intervention as a final judgment for purposes of an interlocutory appeal filed by Intervenor Plaintiff Christopher R Bruggeman. (mb) (Entered: 06/29/2005)
70 ORDER denying 61 Bruggeman's motion to certify an issue for interlocutory appeal. Signed by Judge Sandra S Beckwith on 6/30/05. (mb) (Entered: 06/30/2005)
71 ORDER denying 63 Mattimore's Motion to Intervene. Signed by Judge Sandra S Beckwith on 6/30/05. (mb) (Entered: 06/30/2005)
72 Letter to J. Beckwith from Plaintiff, James Love, dated 6/20/05. (mb) (Entered: 07/05/2005)
Minute Entry: Status Conference held before Judge Sandra S Beckwith. (Court Reporter MA Ranz (Official).) (mb) (Entered: 07/27/2005)
73 NOTICE of Withdrawal of Keith Syler as Counsel for Plaintiffs in this Matter (Syler, Keith) Modified on 8/1/2005 (tt, ). (Entered: 07/29/2005)
74 JOINT MOTION for Approval of Settlement by Plaintiffs and Defendants Reginald Wilkinson, Bruce Martin, Mona Parks, Vicki Ware, and Cindy Lawson. (Attachments: # 1 Stipulation of Settlement # 2 Appendix A to Stipulation of Settlement # 3 Appendix B to Stipulation of Settlement # 4 Appendix C to Stipulation of Settlement # 5 Appendix D to Stipulation of Settlement # 6 Appendix E to Stipulation of Settlement # 7 Proposed Class Notice # 8 Draft Order Approving Settlement)(Singleton, David) Modified on 9/20/2005 − To clarify docket text (tt, ). (Entered: 09/19/2005)
NOTICE by clerk: A conference (via telephone) on the Joint Motion to Approve Class Action Judgment (Doc. 74) is scheduled for October 6, 2005 at 10:00 a.m. before J. Beckwith. The court will initiate the call to counsel. (mb) (Entered: 09/22/2005)
Minute Entry: Conference on the Motion for Approval of Settlement held before Judge Sandra S Beckwith. Fairness hearing set for 11/16/05 at 3:00 PM. (Court Reporter MA Ranz (Official).) (mb) (Entered: 10/06/2005)
75 ORDER preliminarily approving the class settlement. Signed by Judge Sandra S Beckwith on 10/7/05. (Attachments: # 1 Stip. for Injunctive Relief# 2 Notice to Class Members). A fairness hearing is scheduled for 11/16/05 at 3:00 PM. (mb) (Entered: 10/07/2005)
76 NOTICE to class members signed by the clerk. Fairness hearing set for 11/16/05 at 3:00 PM. Any objections are to be filed no later than 11/1/05. (mb) (Entered: 10/07/2005)
77 Objections to 76 Notice (Other) filed by Ralph Beasley and Richard Clark Sr (tt, ) (Entered: 10/13/2005)
78 Objection to 76 Notice (Other) filed by Robert Martin (tt, ) (Entered: 10/13/2005)
79 Letter from Clerk, USDC at Cincinnati to Phillip Tate returning correspondence received on 10/13/2005 (tt, ) (Entered: 10/14/2005)
80 MOTION to Amend/Correct 74 MOTION for Settlement Joint Motion to for Approval of Settlement, 75 Order by Plaintiffs James Love, Rodney Fussell, Gary Roberts, Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Singleton, David) (Entered: 10/14/2005)
84 NOTICE of objection to proposed settlement by Charles Richard Von Schriltz, Mansfield, Ohio. (mb) (Entered: 10/18/2005)
82 NOTICE of objection to proposed settlement by Douglas A. Ankrom, London, Ohio. (mb) (Entered: 10/18/2005)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 16 of 26

10/18/2005
10/19/2005 10/19/2005 10/19/2005 10/20/2005
10/20/2005 10/21/2005
10/21/2005 10/21/2005 10/21/2005 10/24/2005 10/24/2005 10/25/2005 10/26/2005 10/26/2005 10/27/2005 10/27/2005 10/27/2005 10/27/2005 10/28/2005
10/28/2005 10/28/2005

83 NOTICE of objection to proposed settlement by William Ridenour, George Bannister, Charles Boussum &Art Schnipper, all at Chillicothe, Ohio. (Attachments: # 1 Healthcare Debit Forms# 2 Informal Complaint# 3 9/6/05 Memo# 4 (Certificate of Service).(mb) (Entered: 10/18/2005)
85 Objection to 76 Notice (Other)/Proposed Settlement by Class Member John F Johnson (tt, ) (Entered: 10/19/2005)
86 Objection to 76 Notice (Other)/Proposed Settlement by class Member Paul Nelson (tt, ) (Entered: 10/19/2005)
87 Objection to 76 Notice (Other)/Proposed Settlement by Class Member John T Bragg (tt, ) (Entered: 10/19/2005)
88 AMENDED ORDER preliminarily approving settlement. Signed by Judge Sandra S Beckwith on 10/20/05. (Attachments: # 1 Phase 1# 2 Phase 2# 3 Phase 3# 4 Phase 4# 5 DRC Facility &Staffing Legend# 6 MIT Report).(mb) (Entered: 10/20/2005)
89 Objection to 76 Notice (Other)/Proposed Settlement by Anthony Hoepf (tt, ) (Entered: 10/21/2005)
90 Letter from USDC returning Correspondence from Donald L Swearingen (Attachments: # 1 Correspondence from Donald L Swearingen) (tt, ) (Entered: 10/21/2005)
91 Letter from USDC returning correspondence to Curtis Sanders (Attachments: # 1 Correspondence from Curtis Sanders) (tt, ) (Entered: 10/21/2005)
92 Letter from USDC returning correspondence to Edward M Mayrides (Attachments: # 1 Correspondence from Edward M Mayrides) (tt, ) (Entered: 10/21/2005)
93 NOTICE of Class Concerns regarding stipulated judgment by Plaintiff James Love (tt, ) (Entered: 10/21/2005)
94 Objection 76 Notice (Other)/Proposed Settlement by Yaqub A Nur (tt, ) (Entered: 10/25/2005)
95 Objection re 76 Notice (Other)/Proposed Settlement by R Martin (tt, ) (Entered: 10/25/2005)
96 Objection re 76 Notice (Other)/Proposed Settlement by Daries Sherrills (tt, ) (Entered: 10/25/2005)
97 Objection re 76 Notice (Other)/Proposed Settlement by William O Harris (tt, ) (Entered: 10/26/2005)
98 Objection re 76 Notice (Other)/Proposed Settlement by Carl A Nelson, Sr (tt, ) (Entered: 10/26/2005)
99 Objection re 76 Notice (Other)/Proposed Settlement by Jerome E Barnett (tt, ) (Entered: 10/27/2005)
100 Objection re 76 Notice (Other)/Proposed Settlement by David Zion Shie (tt, ) (Entered: 10/27/2005)
101 Objection re 76 Notice (Other)/Proposed Settlement by Brent L Grace (tt, ) (Entered: 10/27/2005)
102 Objection re 76 Notice (Other)/Proposed Settlement by Louis Merriweather (tt, ) (Entered: 10/27/2005)
103 MOTION for Joinder in this instant action by William E Martin and Shannon Haynes. (tt, ). (Objections to the Consent Decree attached). Modified on 10/31/2005 (mb). (Entered: 10/28/2005)
104 Objection re 76 Notice (Other)/Proposed Settlement by Richard J Lemker (tt, ) (Entered: 10/28/2005)
105 Objection re 76 Notice (Other)/Proposed Settlement by Phillip Tate (tt, ) (Entered: 10/28/2005)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 17 of 26

10/28/2005 10/28/2005 10/31/2005
10/31/2005 10/31/2005 10/31/2005 10/31/2005 10/31/2005 10/31/2005 10/31/2005 10/31/2005 11/01/2005
11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/02/2005 11/07/2005 11/08/2005 11/08/2005
11/09/2005

106 Objection re 76 Notice (Other)/Proposed Settlement by Robert D Hunter (Part I) (Attachments: # 1 Objections (Part II))(tt, ) (Entered: 10/28/2005)
107 Letter from Darrell Price regarding unsatisfactory medical care in Madison Correctional Institution (tt, ) (Entered: 10/31/2005)
108 Objections to Stipulation for Injunctive Relief from Counsel for Plaintiffs in the Northern District of Ohio, Civil Action 4:01−cv−071 (Attachments: # 1 Exhibits 1 − 2 # 2 Exhibits 3 − 5 # 3 Exhibits 6 − 8)(tt, ) (Entered: 10/31/2005)
109 Objection re 76 Notice (Other)/Proposed Settlement by Joe L Deavors (tt, ) (Entered: 11/02/2005)
110 Objection re 76 Notice (Other)/Proposed Settlement by Robert D Hunter (tt, ) (Entered: 11/02/2005)
111 Objection re 76 Notice (Other)/Proposed Settlement by Edward Mayrides (tt, ) (Entered: 11/02/2005)
112 Objection re 76 Notice (Other)/Proposed Settlement by Shad D Mills (tt, ) (Entered: 11/02/2005)
113 Objection re 76 Notice (Other)/Proposed Settlement by Arkmael Ray Sales (tt, ) (Entered: 11/02/2005)
114 Objection re 76 Notice (Other)/Proposed Settlement by Lawrence E Stewart (tt, ) (Entered: 11/02/2005)
115 Objection re 76 Notice (Other)/Proposed Settlement by Ronnie Lee Wallace (tt, ) (Entered: 11/02/2005)
116 Objection re 76 Notice (Other)/Proposed Settlement by Andre L Wells (tt, ) (Entered: 11/02/2005)
117 NOTICE/ORDER by US COA 6th Circuit DENYING applications for leave to appeal re Christopher R Bruggeman (05−0302) and Scott G Mattimore (05−0306) (tt, ) (Entered: 11/02/2005)
118 Objections to Proposed Settlement 76 by Reubin J Beavers (tt, ) Modified on 11/3/2005 − To create document link (tt, ). (Entered: 11/03/2005)
119 Objection re 76 Notice (Other)/Proposed Settlement by Jeffrey Hackle (tt, ) (Entered: 11/03/2005)
120 Objection re 76 Notice (Other)/Proposed Settlement by Theodore B Hoffert (tt, ) (Entered: 11/03/2005)
121 Objection Seeking Injunction and Immediate Release for Treatment (tt, ) (Entered: 11/03/2005)
122 Objection re 76 Notice (Other)/Proposed Settlement by Tyrias Johnson (tt, ) (Entered: 11/03/2005)
123 Objection re 76 Notice (Other)/Proposed Settlement by Billy Renshaw (tt, ) (Entered: 11/03/2005)
124 Objection re 76 Notice (Other)/Proposed Settlement by Gary Roberts (tt, ) (Entered: 11/03/2005)
125 NOTICE of Opt Out by Eddie Mack re 76 Notice (Other)/Proposed Settlement (tt, ) (Entered: 11/07/2005)
126 Objection re 76 Notice (Other)/Proposed Settlement by Wayne Allen Timmons (tt, ) (Entered: 11/08/2005)
127 Objection re 76 Notice (Other)/Proposed Settlement by Charles F Stocks (NOTE: This document was mailed with Objections by Wayne Allen Timmons and therefore does not have a separate envelope) (tt, ) (Entered: 11/08/2005)
128 REPLY to Response to 24 MOTION to Intervene filed by Intervenor Michael A Kelley. (Attachments: # 1 Exhibits)(tt, ) (Entered: 11/09/2005)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 18 of 26

11/11/2005 11/11/2005
11/14/2005 11/14/2005
11/14/2005 11/15/2005 11/15/2005 11/15/2005 11/15/2005 11/15/2005 11/16/2005 11/16/2005
11/22/2005 11/22/2005 11/22/2005 11/29/2005

129 BRIEF in Support of Class Action Stipulated by Plaintiff (Attachments: # 1 Declaration of David A. Singleton in support of joint motion to approve stipulated judgment # 2 David Singleton class member summaries)(Gerhardstein, Alphonse) Modified on 11/14/2005 − To clarify docket text (tt, ). (Entered: 11/11/2005)
130 AFFIDAVIT/Declaration of Alphonse Gerhardstein in Support of Joint Motion to Approve Stipulated Judgment re 129 Brief/Memorandum in support of class action stipulated judgment and response to objections by Plaintiff Rodney Fussell. (Attachments: # 1 London Correctional Class Members # 2 Madison Correctional Class Members # 3 Grafton Correctional Class Members # 4 Copay Clarification # 5 Objections Grid)(Gerhardstein, Alphonse) Modified on 11/14/2005 − To clarify docket text (tt, ). (Entered: 11/11/2005)
131 MOTION for Attorney Fees in the amount of $194,592.67 and costs and expenses in the amount of $9,834.29 for a total amount of 204,426.96 by Plaintiff (Gerhardstein, Alphonse) Modified on 11/15/2005 − To clarify docket text (tt, ). (Entered: 11/14/2005)
132 AFFIDAVIT/Declaratio of Alphonse Gerhardstein in support of 131 MOTION for Attorney Fees by Plaintiff (Attachments: # 1 Exhibit 1−A GBL Timesheets # 2 Exhibit 1−B OJPC Timesheets # 3 Exhibit 2 Austin v. Wilkinson Stipulation # 4 Exhibit 3 State of Connecticut v. Choinski Settlement Agreement)(Gerhardstein, Alphonse) Modified on 11/15/2005 − To clarify docket text (tt, ). (Entered: 11/14/2005)
134 Letter from Gary W Roberts regarding Objections submitted to Proposed Settlement 124 (tt, ) (Entered: 11/15/2005)
133 APPLICATION for Writ of of habeas corpus ad testificandum for class representatives Rodney Fussell, James Love and Gary Roberts by Plaintiff (Gerhardstein, Alphonse) Modified on 11/16/2005 − To clarify docket text (tt, ). (Entered: 11/15/2005)
Minute Entry: Phone conference held before Judge Sandra S Beckwith and Judge Gwin (ND of Ohio). The class members in the Austin case is withdrawn. (Court Reporter MA Ranz (Official).) (mb) (Entered: 11/15/2005)
135 Writ of Habeas Corpus ad Testificandum Issued as to Rodney Fussell &James Love for 11/16/05. (mb) (Entered: 11/15/2005)
136 Writ of Habeas Corpus ad Testificandum Issued as to Gary Roberts for 11/16/05. (mb) (Entered: 11/15/2005)
137 NOTICE of Violation of Preliminary Order and Request to be Produced at Fairness Hearing by Theodore B Hoffert (tt, ) (Entered: 11/15/2005)
138 RESPONSE OPPOSING 103 MOTION for Joinder filed by Plaintiffs (Singleton, David) Modified on 11/17/2005 − To clarify docket text (tt, ). (Entered: 11/16/2005)
139 Minute Entry: Hearing held on the Joint Motion to Approve Class Settlement before Judge Sandra S Beckwith. Terms of the settlement summarized. Each of the three class reps. address the court. The court will approve the settlement and will file order next week. Issue of fees still outstanding. Objection will be denied. (Court Reporter MA Ranz (Official).) (mb) (Entered: 11/16/2005)
140 STIPULATION AND ORDER for Injunctive Relief. Signed by Judge Sandra S Beckwith on 11/22/05. (mb) (Entered: 11/22/2005)
141 ORDER APPROVING SETTLEMENT &DENYING OBJECTIONS. The motion to join parties is DENIED. The proposed settlement of the parties is APPROVED. Signed by Judge Sandra S Beckwith on 11/22/05. (mb) (Entered: 11/22/2005)
142 JUDGMENT by clerk on Order filed simultaneously with this Judgment. (mb) (Entered: 11/22/2005)
143 REPLY to Response to 103 MOTION for Joinder filed by Interested Parties Shannon Haynes and William E Martin. (tt, ) (Entered: 11/29/2005)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 19 of 26

12/01/2005 12/06/2005
12/09/2005
12/12/2005 12/12/2005
12/15/2005 01/05/2006 02/07/2006 03/08/2006
03/14/2006 03/14/2006 03/14/2006 03/21/2006 03/24/2006
03/29/2006 03/30/2006 03/30/2006 03/30/2006 03/31/2006

144 NOTICE by Plaintiffs of the Addition of Michael W. Benge as Class Representative from OSP (Singleton, David) Modified on 12/2/2005 − To clarify docket text (tt, ). (Entered: 12/01/2005)
145 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Attorney Fees and Expenses ; New date requested 12/12/2005 by Defendants (Mancini, Joseph) Modified on 12/7/2005 − To clarify docket text (tt, ). (Entered: 12/06/2005)
146 NOTICE by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson of Filing Proposed Stipulated Judgment Entry (Attachments: # 1 Stipulated Judgment Entry)(Mancini, Joseph) (Entered: 12/09/2005)
NOTATION ORDER granting 145 Defts' Motion for Extension of Time of 7 days to respond to pltfs' Motion for Attorney Fees and Expenses. Signed by Judge Sandra S Beckwith on 12/12/05. (mb) (Entered: 12/12/2005)
147 STIPULATED JUDGMENT ENTRY: Defts. shall pay to atty. Gerhardstein and the Ohio Justice and Policy Center the sum of $169,000.00 in atty. fees and expenses. Signed by Judge Sandra S Beckwith on 12/12/05. (mb) (Entered: 12/13/2005)
148 TRANSCRIPT of Conference held on November 15, 2005 before Judge Beckwith. Court Reporter: MA Ranz (Official). ( no pgs: 28) (mb) Modified on 12/15/2005 − To identify number of pages (tt, ). (Entered: 12/15/2005)
149 AFFIDAVIT of Arkmael Ray Sales re 141 Order (tt, ) (Entered: 01/05/2006)
150 MOTION by Objector Donald L Swearingen to appoint new legal counsel and compel injunctive relief sought by class members filed pro se. (tt, ) Modified on 2/8/2006 (mb, ). (Entered: 02/07/2006)
151 ORDER TO SHOW CAUSE: Any party opposing Swearingen's motion for appointment of new class counsel and an order compelling certain actions are to respond by 3/27/06. Mr. Swearingen's reply is due by 4/10/06. Signed by Judge Sandra S Beckwith on 3/8/06. (mb) (Entered: 03/08/2006)
152 MOTION for New Trial by Movant Anthony Hoepf. (tt, ) (Entered: 03/14/2006)
153 NOTICE OF APPEAL from Order entered 11/11/2006 by Movant Anthony Hoepf. (Document does not reflect this document) (tt, ) (Entered: 03/14/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 153 Notice of Appeal (tt, ) (Entered: 03/22/2006)
154 RESPONSE in Opposition re 152 MOTION for New Trial filed by Plaintiffs James Love, Rodney Fussell, Gary Roberts. (Singleton, David) (Entered: 03/21/2006)
155 RESPONSE in Opposition re 150 MOTION appoint new legal counsel and compel injunctive relief sought by class members filed by Plaintiffs James Love, Rodney Fussell, Gary Roberts. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Singleton, David) (Entered: 03/24/2006)
156 NOTICE/Complaint of Retaliation by Plaintiff James Love (Attachments: # 1 Exhibits)(tt, ) (Entered: 03/29/2006)
USCA Case Number 06−3424 for 153 Notice of Appeal filed by Anthony Hoepf(tt, ) (Entered: 03/30/2006)
157 MOTION for Leave to File Additional Evidence to Support Retaliation Claim by Plaintiff James Love. (tt, ) (Entered: 03/30/2006)
158 Letter from United States Court of Appeals for the Sixth Circuit ; Issuance of Deficiency Order requested regarding appeal for Anthony M Hoepf (tt, ) (Entered: 03/31/2006)
159 MOTION for Sanctions against Alphonse A Gerhardstein and David A Singleton by Movant Anthony Hoepf. (tt, ) (Entered: 04/03/2006)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 20 of 26

04/04/2006
04/14/2006 04/26/2006 05/04/2006
05/11/2006
05/24/2006 05/24/2006 05/24/2006 05/26/2006 06/02/2006 06/13/2006 06/16/2006 06/19/2006 06/19/2006 06/25/2006

160 DEFICIENCY ORDER: Plaintiff is ordered to submit an application and affidavit to proceed without prepayment of fee and a certified copy of the trust fund account statement for the six−month period immediately preceding the filing of the notice of appeal or pay the full $255 filing fee within 30 days of the date of this order. Mr. Hoepf's response is due by 5/8/2006. Signed by Judge Sandra S Beckwith on 4/4/06. (Attachments: # 1 Certified mail receipt)(srj, ) Additional attachment # 2 Certified green card returned added on 4/10/2006 (srj, ). Modified on 4/10/2006 to add attachment (srj, ). (Entered: 04/04/2006)
161 TRANSCRIPT of Proceedings (Fairness Hearing) held on 11/16/2005 before Judge Sandra S Beckwith. Court Reporter: Mary Ann Ranz (Official). ( no pgs: 23) (tt, ) (Entered: 04/14/2006)
162 ORDER denying 150 Motion, denying 152 Motion for New Trial, denying 159 Motion for Sanctions. Re: doc. 157, Defts. are ORDERED to show cause why by 5/8/06 this motion should not be granted. A reply may be filed by 5/22/06. Signed by Judge Sandra S Beckwith on 4/26/06. (mb) (Entered: 04/26/2006)
163 RESPONSE TO ORDER TO SHOW CAUSE by Defendant Reginald Wilkinson. (Attachments: # 1 Exhibit Intrasystem Transfer and Receiving Health Screening form# 2 Exhibit Interdisciplinary Progress Notes dated 2/2/06.# 3 Exhibit Interdisciplinary Progress Notes dated 2/3/06.# 4 Exhibit Classifiction and Reclassification Processing form# 5 Exhibit Affidavit of Barbara Allen# 6 Exhibit Temporary Medical Work Restriction Statement# 7 Exhibit Kite dated 2/15/06# 8 Exhibit Doctor's Order dated 2/15/06# 9 Exhibit Temporary Medical Work Restriction Statement dated 2/24/06# 10 Exhibit Classification and Reclassification Processing from dated 3/17/06# 11 Exhibit Affidavit of Kenya Grant)(Pressman, Marianne) (Entered: 05/04/2006)
164 ORDER signed by Judge Sandra S Beckwith on 5/11/2006 ; To date, Mr. Hoepf has yet to comply with the Courts Deficiency Order 160 ; Accordingly, Mr. Hoepf is assessed the full appellate filing fee of $255.00. See McGore v. Wrigglesworth, 114 F.3d 601, 609 (6th Cir. 1997) re 153 Notice of Appeal (tt, ) Additional attachment # 1 Certified Mail Receipt added on 5/12/2006 (tt1, ). Modified on 5/12/2006 − To identify attachment (tt1, ). (Entered: 05/11/2006)
165 ORDER denying 157 James F. Love's complaint (doc. 156) is dismissed to the extent that it is not stricken. His motion for Leave to File Addt'l Evidence is denied. Signed by Judge Sandra S Beckwith on 5/24/06. (mb) (Entered: 05/24/2006)
166 JUDGMENT by clerk. (mb) (Entered: 05/24/2006)
167 Response with respect to 163 Defendants Response to Order to Show Cause by Plaintiff James Love. (Attachments: # 1 Exhibits (Part I) # 2 Exhibits (Part II) # 3 Exhibits (Part III))(tt1, ) (Entered: 05/26/2006)
168 ORDER re 167 Response filed by James Love and REAFFIRMING 166 Judgment signed by Judge Sandra S Beckwith (tt1, ) (Entered: 05/26/2006)
169 MOTION to Alter/Amend Judgment and MOTION to Clarify 165 Order of 5/24/2006 by Plaintiff James Love. (tt, ) (Entered: 06/02/2006)
170 USCA INFORMATION COPY re 153 Notice of Appeal filed by Anthony M Hoepf ; The Appeal is DISMISSED (tt, ) (Entered: 06/13/2006)
171 RESPONSE in Opposition re 169 MOTION to Alter/Amend and MOTION to Clarify filed by Defendants (Mancini, Joseph) Modified on 6/19/2006 − To edit docket text (tt1, ). (Entered: 06/16/2006)
172 MOTION for Leave to File Traverse Instanter by Plaintiff James Love. (Attachments: # 1 Exhibits 1A − 10A)(tt, ) (Entered: 06/19/2006)
173 MOTION for Leave to File/Submit Additional Evidence by Plaintiff James Love. (Attachments: # 1 Exhibits 1 − 5)(tt, ) (Entered: 06/19/2006)
174 NOTICE OF WITHDRAWL OF DOCUMENTS by Plaintiff James Love re 169 MOTION to Alter Judgment, 172 MOTION for Leave to File, and 173 MOTION for Leave to File (Singleton, David) Modified on 6/26/2006 to edit text (srj, ).

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 21 of 26

07/11/2006
09/20/2006 09/27/2006 09/29/2006 10/19/2006 10/20/2006 02/26/2007 03/14/2007 04/10/2007 06/27/2007 01/30/2008 02/11/2008 08/21/2008 09/15/2008
09/16/2008

(Entered: 06/25/2006)
175 NOTICE by Plaintiff Rodney Fussell of filing of Amicus Brief in Austin v. Wilkinson in opposition to motion for extension of medical provisions of the stipulations for injunctive relief in that case (Attachments: # 1 Motion to file Amicus Brief in Austin v. Wilkinson# 2 Amicus Brief in Austin v. Wilkinson in opposition to motion for extension of medical provisions of the stipulations for injunctive relief in that case)(Gerhardstein, Alphonse) Modified on 7/12/2006 to correct spelling of text(srj, ). (Entered: 07/11/2006)
176 MOTION for Temporary Restraining Order by Plaintiff Rodney Fussell. (tt1, ) (Entered: 09/20/2006)
177 Response Defendants' Response to Class Representative Fussell's Letter by Defendant Reginald Wilkinson. (Attachments: # 1 Memorandum from Amy Weiss, RN dated 9/22/06)(Pressman, Marianne) (Entered: 09/27/2006)
178 NOTICE by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson re 177 Response (non motion) OF MAILING THEIR RESPONSE TO PLAINTIFF RODNEY FUSSELLS LETTER (Mancini, Joseph) (Entered: 09/29/2006)
179 REPLY to Response to 176 MOTION for Temporary Restraining Order filed by Plaintiff Rodney Fussell. (Attachments: # 1 Exhibits)(tt1, ) (Entered: 10/19/2006)
180 NOTICE OF WITHDRAWL OF DOCUMENT by Plaintiff Rodney Fussell re 179 Reply to Response to Motion and 177 Response (non motion) (Singleton, David) Modified on 10/23/2006 − To modify docket text (tt1, ). (Entered: 10/20/2006)
181 STIPULATION regarding Dental Services by the parties. (Attachments: # 1 Agreement on Dental Care)(Gerhardstein, Alphonse) Modified on 2/27/2007 − To modify docket text (tt1, ). (Entered: 02/26/2007)
182 AMENDED DOCUMENT/Amendment to 181 Stipulation (attachment #1)Agreement on Dental Care by Plaintiff. (Gerhardstein, Alphonse) Modified on 3/15/2007 − To modify docket text (tt1, ). (Entered: 03/14/2007)
183 MOTION to Alter or Amend Judgment or, in the Alternative, Correct Judgment by Class Member Dennis M. Wolfel (pro−se). (sfe1, ) Modified on 4/12/2007 − To modify filer name. (tt1, ). (Entered: 04/10/2007)
184 ORDER denying 183 Motion to Amend the Judgment. Doc. 183 to be sent to class counsel. Signed by Judge Sandra S Beckwith on 6/27/07. (mb, ) (Entered: 06/27/2007)
185 NOTICE by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson of Withdrawal of J. Eric Holloway as Counsel (Landes, Mark) (Entered: 01/30/2008)
186 NOTICE of Appearance by J Eric Holloway Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson (Holloway, J) (Entered: 02/11/2008)
187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court. (Attachments: # 1 Exhibit) (jr) (Entered: 08/21/2008)
188 Unopposed MOTION for Extension of Time to Respond re 187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson. New date requested 9/29/2008. (Holloway, J) Modified docket text and docket association on 9/16/2008 (eh1, ). (Entered: 09/15/2008)
NOTATION ORDER granting 188 Defendants' Motion for Extension of Time until 9/28/08 to respond to doc. 187. Signed by Chief Judge Sandra S Beckwith on 9/16/08. (mb) (Entered: 09/16/2008)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 22 of 26

09/26/2008
09/29/2008 10/02/2008 10/06/2008 10/14/2008 10/22/2008
10/23/2008 01/15/2009 03/12/2009 04/03/2009 04/06/2009 04/17/2009 04/27/2009

189 Second MOTION for Extension of Time to File Response/Reply as to 187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court New date requested 10/6/2008. by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson. (Holloway, J) (Entered: 09/26/2008)
NOTATION ORDER granting 189 Defendants' Motion for Extension of Time until 10/6/08 to Respond to the motion to enforce. Signed by Chief Judge Sandra S Beckwith on 9/29/08. (mb) (Entered: 09/29/2008)
190 Supplemental Memorandum Supporting re 187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court filed by Movant Daniel Wilson. (jcw) (Entered: 10/02/2008)
191 RESPONSE in Opposition re 187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court filed by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson. (Attachments: # 1 Exhibit A, DesMarais Declaration) (Holloway, J) (Entered: 10/06/2008)
192 REPLY to Response to Motion re 187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court filed by Movant Daniel Wilson. (pes) (Entered: 10/14/2008)
193 MOTION for Extension of Time to File Response/Reply as to 192 Reply to Response to Motion, 187 MOTION Seeking Enforcement of Agreed Upon Stipulation, or, in the Alternative, Hold Defendants in Contempt of Court, 191 Response in Opposition to Motion, 190 Supplemental − Supporting New date requested 12/1/2008. by Plaintiffs James Love, Rodney Fussell, Gary Roberts. (Singleton, David) (Entered: 10/22/2008)
NOTATION ORDER granting 193 Plaintiffs' Motion for Extension of Time until 12/1/08 to File response to defendants' opposition to pro se motion to enforce stipulation (Doc. 191). Signed by Chief Judge Sandra S Beckwith on 10/23/08. (mb) (Entered: 10/23/2008)
194 ORDER finding as moot 187 Motion of Daniel Wilson seeking hip surgery. The court has been informed that the surgery occurred in November 2008. If not, Wilson is ordered to file a statement by 2/17/09. Signed by Judge Sandra S Beckwith on 1/15/09. (mb) (Entered: 01/15/2009)
195 MOTIONS OF PLAINTIFF CLASS MEMBER (MOTION to Certify Class, MOTION to Appoint Counsel, MOTION for Hearing, MOTION to Issue Writs of Habeas Corpus ad Testificandum, MOTION for Contempt, MOTION for $1,000 a day, MOTION to Release Inmates) by Interested Party William E Martin.( Responses due by 4/6/2009). (eh1, ) (Entered: 03/12/2009)
196 Unopposed MOTION for Extension of Time to File Response/Reply as to 195 MOTIONS OF PLAINTIFF CLASS MEMBER by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson. New date requested 4/17/2009. (Holloway, J) Modified docket text on 4/6/2009 (eh1, ). (Entered: 04/03/2009)
NOTATION ORDER granting 196 Defendants' Motion for Extension of Time until 4/17/09 to respond to motion to enforce, etc. (doc. 195). Signed by Judge Sandra S Beckwith on 4/6/09. (mb) (Entered: 04/06/2009)
197 RESPONSE in Opposition re 195 MOTION to Certify Class MOTION to Appoint Counsel MOTION for Hearing Motion for Contempt filed by Defendants Reginald Wilkinson, Kay Northrup, Bruce Martin, Pedro Obregon, Mona Parks, Vicki Ware, James McWeeney, Cindy Lawson. (Holloway, J) (Entered: 04/17/2009)
198 REPLY to Response to Motion 195 MOTION to Certify Class MOTION to Appoint Counsel MOTION for Hearing Motion for Contempt − AND − Response re 196 Unopposed MOTION for Extension of Time to File Response/Reply as to 195 MOTION filed by Interested Party William E Martin. (Attachments: # 1 Exhibits) (eh1, ) Modified on 4/27/2009 (eh1, ). (Entered: 04/27/2009)

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 23 of 26

05/20/2009 05/20/2009 05/20/2009
05/26/2009 06/01/2009
06/03/2009 06/03/2009 06/10/2009
07/14/2009 07/21/2009 08/26/2009
08/31/2009 09/21/2009 09/21/2009 08/24/2010 08/27/2010 09/01/2010

199 [FORMER DOC. 199] SUPPLEMENTAL MOTION to Appoint Counsel by Interested Party William E Martin. (eh1, ) Modified to remove pdf on 5/20/2009 (eh1, ). (Entered: 05/20/2009)
200 SUPPLEMENTAL MOTION to Appoint Counsel by Interested Party William E Martin. (eh1, ) (Entered: 05/20/2009)
Notice of Correction re:[FORMER DOC. 199] SUPPLEMENTAL MOTION to Appoint Counsel removed from the docket (and motion terminated) due to scanning error − missing page. Clerk re−docketed as Doc. 200 to ensure that all parties are served with correct version. (eh1, ) (Entered: 05/20/2009)
201 ORDER striking Doc. 200 Motion to Appoint Counsel and directing the clerk to remove the motion from the ECF docket. Signed by Judge Sandra S Beckwith on 5/26/09. (mb) Modified on 5/27/2009 (mb, ). (Entered: 05/26/2009)
202 ORDER denying 195 Motion to Certify Class; denying 195 Motion to Appoint Counsel ; denying 195 Motion for Hearing; denying 195 Motion for Contempt; denying 195 . Signed by Judge Sandra S Beckwith on 6/1/09. (mb) (Entered: 06/01/2009)
203 MOTION for Recusal by Interested Party William E Martin. (eh1, ) (Entered: 06/03/2009)
204 Supplemental Memorandum Supporting 195 Motion to Appoint Counsel and 200 Supplemental Motion to Appoint Counsel by Interested Party William E Martin. (Attachments: # 1 Exhibit) (eh1, ). (Entered: 06/03/2009)
205 MOTION for Relief from Judgment re 38 Order on Motion for Miscellaneous Relief, Order on Motion to Intervene, Order on Motion for Leave to Proceed in forma pauperis, Order on Motion for Leave to File; 59 Order on Motion to Intervene, Order on Motion for Preliminary Injunction, Order on Motion for TRO; 71 Order on Motion to Intervene; 141 Order; 142 Judgment; 147 Order; 162 Order on Motion for Miscellaneous Relief, Order on Motion for New Trial, Order on Motion for Sanctions; 184 Order on Motion to Amend/Correct; and 202 Order on Motion to Certify Class, Order on Motion to Appoint Counsel, Order on Motion for Hearing, Order on Motion for Contempt, Order on Motion for Miscellaneous Relief by Interested Party William E Martin. (eh1, ) (Entered: 06/10/2009)
NOTICE by clerk: Case is referred to Magistrate Judge Black. (mb, ) (Entered: 07/14/2009)
206 ORDER denying 203 Motion for Recusal. Signed by Judge Sandra S Beckwith on 7/21/09. (mb) (Entered: 07/21/2009)
207 REPORT AND RECOMMENDATION that class member William E. Martin's 205 pro se MOTION for Relief from Judgment be Denied. Objections to RRdue by 9/14/2009. Signed by Magistrate Judge Timothy S. Black on 8/26/2009. (art, ) (Entered: 08/26/2009)
208 ACKNOWLEDGMENT OF SERVICE Executed upon William Martin as to 207 REPORT AND RECOMMENDATIONS. (eh1, ) (Entered: 08/31/2009)
209 ORDER adopting Report and Recommendation re 207 . Class member William E. Martin's motion for relief from judgment is denied. Signed by Judge Sandra S Beckwith on 9/21/09. (mb) (Entered: 09/21/2009)
210 JUDGMENT by clerk. (mb) (Entered: 09/21/2009)
211 NOTICE of Appearance by Lawrence H Babich for Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson (Babich, Lawrence) (Entered: 08/24/2010)
212 NOTICE by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson of Substitution of Trial Counsel (Holloway, J) (Entered: 08/27/2010)
213 NOTICE of Appearance by Debra L Gorrell for Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 24 of 26

09/08/2010 10/20/2010
10/21/2010
11/02/2010 01/20/2011 08/10/2011 04/11/2012
05/09/2012 05/22/2012 05/29/2012 05/29/2012 05/31/2012 05/31/2012 05/31/2012

Ware, Reginald Wilkinson (Gorrell, Debra) (Entered: 09/01/2010)
214 ORDER by Chief Judge Susan J. Dlott REASSIGNING CASE from the docket of The Honorable Timothy S. Black to the docket of The Honorable J. Gregory Wehrman. (sct1) (Entered: 09/08/2010)
215 *** FORMER DN 215 **** NOTICE by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson of Joint Filing of the Parties Proposed Modifications to the Stipulation for Injunctive Relief (Holloway, J) Modified to edit text and remove PDF on 10/21/2010 (mr1). (Entered: 10/20/2010)
Notice of Correction re: former dn 215 Notice (Other). PDF removed. The pleading is actually a proposed order requiring the approval and signature of the Court. All proposed orders are to be submitted to judge's chambers via e−mail. The document has been saved and emailed to Chambers, but deleted from the docket until such time as it has been signed and approved by the Court. (mr1) (Entered: 10/21/2010)
216 ORDER approving modifications to the Stipulation for Injunctive Relief (Doc. 140). Signed by Judge Sandra S Beckwith on 11/2/10 &Counsel. (mb) (Entered: 11/02/2010)
217 ORDER: The Independent Consultant, Fred Cohen, is permitted to file a final report on 6/22/12. This final report will be in lieu of a report at the end of 2011. Signed by Judge Sandra S Beckwith on 1/20/11. (mb) (Entered: 01/20/2011)
218 ORDER of USCA: The petition for a writ of mandamus is DENIED. Because we deny the petition, the motion to proceed in forma pauperis is denied as moot. (sct1) (Entered: 09/01/2011)
219 ORDER (also filed in civil case no: 1:12−cv−144, Doc. 23): Plaintiffs' complaint in case 1:12−cv−144 is dismissed without prejudice because plaintiffs have violated the terms of the consent decree in this case. If plaintiffs have a legitimate complaint about systemic deficiencies in the state's medical care system, they must avail themselves of the remedies and procedures outlined in the consent decree in this case prior to instituting any legal action of their own. Signed by Judge Sandra S Beckwith on 4/11/12. (mb) (Entered: 04/11/2012)
220 NOTICE of Appearance by Ryan G Dolan for Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson (Dolan, Ryan) (Entered: 05/09/2012)
221 NOTICE of Substitution of Counsel: Rickell Howard for Al Gerhardstein for Plaintiffs. (Howard, Rickell) Modified on 5/23/2012 (mb). (Entered: 05/22/2012)
222 NOTICE of intent to file a motion to remove class counsel by Plaintiff James Love (Pro Se). (mb) (Entered: 05/30/2012)
223 MOTION to remove class counsel and to appoint new counsel by Plaintiff James Love (Pro Se). (mb) (Entered: 05/30/2012)
224 MOTION to Withdraw 223 MOTION for removal of class counsel by Plaintiff James Love (Pro Se). (mb) (Entered: 05/31/2012)
NOTATION ORDER withdrawing 223 Motion to remove class counsel; granting 224 Motion to Withdraw. Signed by Judge Sandra S Beckwith on 5/31/12. (mb) (Entered: 05/31/2012)
225 AFFIDAVIT of David Singleton by Plaintiffs Rodney Fussell, James Love, Gary Roberts. (Attachments: # 1 Exhibit ACI Report 2011, # 2 Exhibit ACI Report 2012, # 3 Exhibit CCI Report 2011, # 4 Exhibit CRC Report 2011, # 5 Exhibit CRC Report 2012, # 6 Exhibit DCI Report 2011, # 7 Exhibit DCI Report 2012, # 8 Exhibit FMC Report 2011, # 9 Exhibit GCI Report 2011, # 10 Exhibit LaeCI Report 2011, # 11 Exhibit LeCI Report 2011, # 12 Exhibit LoCI Report 2012, # 13 Exhibit MaCI Report 2012, # 14 Exhibit ManCI Report 2011, # 15 Exhibit MCI Report 2011, # 16 Exhibit MCI Report 2012, # 17 Exhibit NCCI Report 2011, # 18 Exhibit NCCI Report 2012, # 19 Exhibit ORW Report April 2011, # 20 Exhibit ORW Report July 2011, # 21 Exhibit ORW Report 2012, # 22 Exhibit PCI Report

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 25 of 26

06/04/2012 06/06/2012 06/12/2012 06/13/2012 06/13/2012
06/14/2012 06/27/2012 07/23/2012 07/23/2012 08/06/2012 08/21/2012 08/21/2012 08/22/2012
09/07/2012
09/11/2012

2012, # 23 Exhibit SOCF Report 2011, # 24 Exhibit ToCI Report 2011, # 25 Exhibit TCI Report 2011, # 26 Exhibit WCI Report 2011) (Howard, Rickell) (Entered: 05/31/2012)
226 AFFIDAVIT of David Singleton by Plaintiffs Rodney Fussell, James Love, Gary Roberts. (Attachments: # 1 Exhibit Fifth Annual Report) (Howard, Rickell) (Entered: 06/04/2012)
227 MOTION for Extension of Stipulation for Relief AND to Stay termination of the Stipulation pending ruling on this motion by Plaintiffs. (Howard, Rickell) Modified on 6/7/2012 (mb). (Entered: 06/06/2012)
Minute Entry: Status conference re: inmate Ben Hawkins held before Judge Sandra S Beckwith. (Court Reporter MA Ranz (Official).) (mb) (Entered: 06/12/2012)
228 ORDER: Pursuant to conference held 6/12/12, the matter concerning inmate Ben Hawkins is closed. Signed by Judge Sandra S Beckwith on 6/13/12. (mb) (Entered: 06/13/2012)
229 ORDER granting 227 Plaintiffs' Motion to stay the expiration of the stipulation and order for injunctive relief currently scheduled for 6/22/12, pending ruling on the motion to extend the stipulation for injunctive relief. A status conference is scheduled for 9/19/12 at 11:00 AM. Defendants are to initiate the call to chambers. Signed by Judge Sandra S Beckwith on 6/13/12. (mb) (Entered: 06/13/2012)
230 RESPONSE to Motion re 227 First MOTION re 225 Affidavit,,, 226 Affidavit, 216 Order, 140 Stipulation and Order filed by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson. (Dolan, Ryan) (Entered: 06/14/2012)
231 NOTICE of filing Letter to the Court concerning healthcare at the Franklin Medical Center filed by Inmate, Ben Hawkins. (mb) (Entered: 07/03/2012)
NOTICE by clerk: A Status Telephone Conference is set for 8/21/2012 at 11:00 AM before Judge Sandra S Beckwith. Counsel for defendants is to initiate the call to chambers. (mb) (Entered: 07/23/2012)
NOTICE by clerk: The conference scheduled for 9/19/12 is VACATED. (mb) (Entered: 07/23/2012)
232 NOTICE of Appearance by Dustin J Calhoun for Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson, Plaintiff Gary Roberts (Calhoun, Dustin) (Entered: 08/06/2012)
Minute Entry: Status conference held before Judge Sandra S Beckwith. (Court Reporter MA Ranz (Official).) (mb) (Entered: 08/21/2012)
NOTICE by clerk: An evidentiary hearing on plaintiffs' motion for extension of stipulation for injunctive relief (doc. 227) is scheduled for 10/9/12, 10/10/12 &10/11/12 at 09:00 AM before Judge Sandra S Beckwith. (mb) (Entered: 08/21/2012)
233 ORDER scheduling an evidentiary hearing for 10/9−11/2012. Defendants' may file a response to the motion to extend the stipulation by 9/7/12. Plaintiffs shall disclose to defendants their witnesses and testimony by 9/18/12; Defendants to disclose their witnesses and testimony by 9/28/12. Signed by Judge Sandra S Beckwith on 8/22/12. (mb) (Entered: 08/22/2012)
234 RESPONSE in Opposition re 227 First MOTION re 225 Affidavit,,, 226 Affidavit, 216 Order, 140 Stipulation and Order and Motion for Termination per the Express Terms of the Stipulation filed by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson, Plaintiff Gary Roberts. (Attachments: # 1 Exhibit A Fussel Final Report) (Calhoun, Dustin) (Entered: 09/07/2012)
235 MOTION for Leave to File Amicus Curiae Brief by Movants Benjamin Hendricks, Robert Austin, Richard Mansfield, Billy Bowman, Andrew Beaman, Earl Steidl, Steven Ziegler, Joseph Chavez, Hermando Harton, Jr., Steven Francis, &Aaron

Case: 1:03-cv-704 As of: 07/14/2014 11:21 AM EDT 26 of 26

09/11/2012 09/18/2012
09/24/2012
10/02/2012
10/02/2012 02/18/2014

Swank. (Attachments: # 1 Appendix: Memo in Support, # 2 Exhibit A: East Ohio Reg. Hospital Report, # 3 Exhibit B: Medical File of Hendricks, # 4 Exhibit C: Catheter kit label, # 5 Exhibit D: Medical File of Hendricks, # 6 Exhibit E: Medical Protocal B−1, # 7 Exhibit F: Medical File of Hendricks, # 8 Exhibit G: Medical File of Hendricks, # 9 Exhibit H: Medical File of Hendricks, # 10 Exhibit I: Medical Protocol A−1.11). (mb) (Entered: 09/11/2012)
NOTICE by clerk: Medical Records attached as exhibits to doc. 235 placed under seal. (mb) (Entered: 09/11/2012)
236 MOTION to Strike 235 MOTION for Leave to File to File Amicus Brief by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson. (Calhoun, Dustin) (Entered: 09/18/2012)
237 STIPULATION of Dismissal by Defendants Cindy Lawson, Bruce Martin, James McWeeney, Kay Northrup, Pedro Obregon, Mona Parks, Vicki Ware, Reginald Wilkinson. (Attachments: # 1 Exhibit Private Settlement Agreement) (Calhoun, Dustin) (Entered: 09/24/2012)
238 ORDER terminating the November 2005 stipulation for injunctive relief and all modifications; Denying 236 Motion to Strike. The amicus curiae brief will remain part of the record. The 10/9/12 hearing is VACATED. Signed by Judge Sandra S Beckwith on 10/2/12. (mb) Modified on 10/3/2012 (mb). (Entered: 10/02/2012)
239 CLERK'S JUDGMENT. (mb) (Entered: 10/02/2012)
240 Transcript of Telephone Conference held on June 12,2 012, before Judge Beckwith. Court Reporter/Transcriber MA Ranz (Official), Telephone number 513.564.7626. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 3/11/2014. Redacted Transcript Deadline set for 3/21/2014. Release of Transcript Restriction set for 5/19/2014. (mb) (Entered: 02/18/2014)

 
 NAME: NUMBER: DATE:

DECISION OF THE CHIEF INSPECT~01J3-::-;"Iir:\1

~O~.\\\0 ON A GRIEVANCE

riC \

RODNEY FUSSEll 344-093 DECEMBER 10, 2002

GRIEVANCE NUMBER(S):

SOCF 12-02-002

The office of the Chief Inspector is in receipt of your notification of grievance, the disposition of that grievance, and your appeal to this office. A review of your appeal has been completed. The decision of the Assistant Inspector is hereby AFFIRMED.
In reaching this decision, I reviewed your grievance and appeal regarding treatment for Hepatitis C. You feel that you should be given a liver biopsy. I have also reviewed the Assistant Inspector's investigation and response. Having done so, I find that the ASSistant Inspector responded fully and appropriately to your complaint. In her response she noted that you were diagnosed with hepatitis C in September 2002. The doctor saw you on October 2, 2002. No abnormalities were noted. As of December 3, 2002 the doctor has not found the need to order a biopsy.
In conclusion, on review of all inform ation provided, I find that the ASSistant Institutional Inspector has appropriately responded to your complaint. The position of Inspector is to insure that you are being se<en for yO~Jr medical compl2int. Neitt"ler the Inspector nor this office can di?9n05~, prescribe, or recommend any medical treatment. Although you do not agree with the treatment you are receivi ng your medical concerns are not being ignored and are addressed by a licensed medical physician. Nonetheless, your complaint regarding this matter has been referred to the Office of Correctional Healthcare for further review and response.
This office will take no further action on this matter at this time.

""'- cc: Inspector of Ins'l;;a! Servi~~ ' ''_'," _...~

Warden

,_ . .l~"' ~..~.~

Office of Co rrectional H;,:it"h"carc ;-"' ,' .

File

L.C.CQVAl,ASST.CHIEFINSPECTOR

Appeal to the Chief Inspector

TO: Ch ief Inspe ctor

. . Numbcl 309-477

Jnstiluton:

Griellance No.

Oale
8-20-03

I am appea ling the deci s ion of the Managing Officer and/or the Inspeclor of Institutional Services concern ing

m y Griev ance. wh ich they made on .... ...8: .L8- Q_3 .___ ._._ fo r the follo wing reasons:

INSTRUCTIONS: Comp/ele App(?al form and attach CANARY copy of rhe Notification of Grievance,
Disposition of grie\'once and Supplemental Disposition oj Grje\'once. if used and submit to: CHIEF
INSPECTOR, 1050 Fr~elVay V,: North: Colllmblls, O~io: 4]<29.

NOTE:

The Chief Inspector reserves the rigljt to return the Appeal Form, unanswered. if the Appeal

Form ;s submitted withoUl a,llihe necessary documents a,~ directed by the above instructions.

On November 12th 2002 a Doctor at O.S.U. Ordered a liver biopsy due t o Hepatitis C. To date I have initiated at least four attempts to find out ~' I have not been called for a round trip to O.S.U. for the biopsy to no aVAil I hav e to have the biopsy before I can st a rt Interf e ron treatment as sta ~
by the O.S.U. Doctor. Iroet with Ms . Ware on July 29th 2003. At this meeting Ms. Wa r e told me that s h e wo ul d sch e duling appointment for the biopsy. Said she would get baCk with me as soon as she got the appointment. On August 1st, 2003 "1 met with Mr. Bla ckwell (Insittution Inspector» and di sc us s ed the meeting "1 had vith Ms. Ware. Mr. Blackwell "informed me thftt he would b e g one from the institution until the 18th of august 2003 . He ~ "J s aid if Ms . Ware hadn't got back with me by the 18th of August 18th 2003 ~~ he returned to the institution for me to come see him and he would try and re s olve this issue. 1 saw Mr. Blackwell on the 18th of august and he called rn s .Ware and asked her about the appointment for the biopsy~ She said she wo uld c~ll back. About ten minutes lat er she called back and said she had reviewed my file and at this time 1 didn't need a liver biospy. How CRV Ms. Ware not a doctor over-rul e a doctor from O.S.U. vho ordered a biopsy The doctor at O.S.U. said I had to have the biopsy to Bee how much liver damage I have and to sec if I have cirrhosis of the liver. Once you get" cirrhosis you can't get treatment. My liv e r continues to deteriorate. My platlet count continues to drop. The normal "range is (130,000 to 400,000) My platlet count is 86,000 at the present time. In June 2003 it was 94,000 so it is dropping about 10,000 a month. Once it drapes t o 75,000 you can't get treatm e nt. That is why I am appealing to you. I need the biopsy thatn, e.. O. S .U. d oc t o r ordered so I can get treatment if it isn't already to late ~5 the bio ps y wa s ordered on the 12th of November 2002. Thank yOIJ for y ou r time and consideration in thiR matter.

one 4 14& [2/')(;1

(U$e Ihe re v e r ~~ .s ld~ If more slKlcC is needed)
[,.,,,¥ ,."~",=V';' Y 77 (;JA ~ ia,t- 8,

DECISION OF THE CHIEF INSPECTOR ON A GRIEVANCE APPEAL

NAME: NUMBER: DATE:

JAMES LOVE A329-475 JULY 31, 2002

INSTITUTION: GRIEVANCE NUMBER(S):

LECI 07-02-012

The office of the Chief Inspector is in receipt of your notification of grievance, the disposition of that grievance, and your appeal to this office. A review of your appeal has been completed. The decision of the Inspector is hereby AFFIRMED.
In reaching this decision, I reviewed your grievance appeal and the Inspector's investigation and response regarding inadequate dental services. You claimed that you have been on a waiting list since April 2001. You assert that ORe policy 320~ 13 is unconstitutional and you have a right to continual dental treatment. Having done so, I find that the Inspector responded fully and appropriately to your complaint.
The ·Inspector quoted policy 320-13 identifying the category in which cleaning services fall. The Inspector further stated that you are on a waiting list to have your teeth cleaned. I find that you are receiving continual dental treatment.
This office will take no further action on this matter at this time.

Cc: Inspector of Institutional Services Warden File

RHONDA JOHNSON, ACT'G SST. CHIEF INSPECTOR

DECISION OF THE CHIEF INSPECTOR ON A GRIEVANCE APPEAL

NAME :

JAMES LOVE

NUMBER: A329-475

DATE :

SEPTEMBER 17, 2003

INSTITUTION:

LEeI

GRIEVANCE NUMBER (S): 08-03-004

The office of the Chief Inspector is in receipt of your notification of grievance, the disposition of tha t grievance, and your appeal to this office. A review of you r appeal has been completed. The decision of the Inspector is hereby AFFIRMED.
In reaching this decision I reviewed your grievance and appeal regarding inadequate dental care, and the Inspector's investigation and response. Having done so I find the I nspector responded fully and appropriately to your grievance. However, a copy of your grievance is being forwa rded to the Office of Correctional Healthcare for further review and response.
This office will take no further action on this matter at t his t ime.

CC: Inspector of Institutional Services Fil e Warde n

LARRY YODER, ACTING ASST. CHIEF INS PECTOR