Case 3:05-cv-01784-SRC-JJH Document 2 Filed 05/19/2005 Page 1 of 22

NEW JERSEY PROTECTION AND ADVOCACY, INC. BY: WILLIAM EMMETT DWYER, ESQ. (WD 6894)
HELEN C. DODICK, ESQ. (HD 4960) 210 SOUTH BROAD STREET, 3RD FLOOR TRENTON, NEW JERSEY 08608 (609) 292-9742 Attorney for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

:

:

NEW JERSEY PROTECTION AND ADVOCACY, :

INC., a New Jersey non-profit corporation;

:

:

Plaintiff,

:

:

v.

:

:

JAMES DAVY, In his Official Capacity as

:

Commissioner of Human Services for the State of :

New Jersey,

:

:

Defendant.

:

:

:

Civil Action No. 305-cv-01784 (SRC)
AMENDED COMPLAINT

PRELIMINARY STATEMENT

Every day, hundreds of individuals are unnecessarily and illegally confined in New Jersey’s state psychiatric hospitals. These individuals no longer require inpatient care and treatment. The only reason they continue to be confined and are not living in the community is because the Defendant has failed to develop suitable community living placements and programs for their release back into their communities.

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The failure to release people who no longer require hospitalization has gone on for over a quarter of a century in New Jersey. The Defendant was sued in the early 1980’s on behalf of several patients seeking release from continued unnecessary confinement. In re S.L., 94 N.J. 128 (1983). At that time, Defendant argued that even though the individuals seeking discharge no longer met the legal standards for commitment, it would be cruel to release such individuals because there were no discharge plans or available community placements. However, keeping those individuals hospitalized posed a problem, as there was no legal basis for keeping such persons confined.
In an effort to prevent the abandonment of psychiatric patients by the State, the New Jersey Supreme Court found legal authority for keeping persons confined to the State’s psychiatric hospitals when they no longer required inpatient treatment. The court articulated this legal authority in the case In re S.L., 94 N.J. 128 (1983). In that case, the court determined that the State's parens patriae power was sufficient to continue the confinement of individuals in state hospitals and maintain their segregation from the community at large. S.L. gave rise to what is known as “Conditional Extension Pending Placement” (CEPP).
CEPP status was designed to provide the State with time to develop an appropriate community placement before discharging a patient while simultaneously protecting the patient’s due process rights. A person can be placed on CEPP status at a review hearing if the judge finds that the individual is entitled to discharge but an appropriate placement is not available. The procedure is set forth in New Jersey R. 4:74-7(h)(2).
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Unfortunately, the Defendant has egregiously misused CEPP status to retain staggering numbers of individuals in locked and dangerous facilities when they have a right to reside in and receive mental health services in the community.
Today, CEPP status would not be necessary at all if the Defendant’s predecessors over the past twenty-five years had developed community placements and initiated timely discharge planning for patients deemed no longer in need of hospitalization. Rather than develop the community programs and placements these individuals need, the State instead has allowed them to languish in confinement far beyond the reasonable expectation for any CEPP status.
This case is about compelling the Defendant to develop and provide community placements for individuals in state psychiatric hospitals, individuals who have been adjudicated as no longer meeting the standards for civil commitment.
THE PARTIES
1. Plaintiff New Jersey Protection & Advocacy, Inc. (NJP&A or Plaintiff), a non-profit corporation, is the federally funded agency designated since 1994 to serve as New Jersey's protection and advocacy system for people with disabilities. Pursuant to this designation, NJP&A serves as the agency to implement, on behalf of the State of New Jersey, the Protection and Advocacy System for Individuals with Mental Illness established under 42 U.S.C §§ 1080110807.
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2. NJP&A is part of a nationwide network of protection and advocacy agencies located in all fifty states, the District of Columbia, Puerto Rico, and the federal territories. The protection and advocacy system comprises the nation’s largest provider of legally based advocacy services for people with disabilities.
3. NJP&A has statutory authority to pursue legal, administrative and other appropriate remedies to ensure the protection of individuals with mental illness who are or will be receiving care and treatment in New Jersey pursuant to the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq.
4. NJP&A is pursuing this action to protect and advocate for the rights and interests of “individuals with mental illness” as that term is defined in 42 U.S.C. § 10802. Specifically, NJP&A brings this action on behalf of individuals with mental illness who are confined to state psychiatric hospitals within New Jersey whom a court of this State has adjudicated as no longer meeting the statutory requirement for involuntary commitment to a state psychiatric hospital.
5. These individuals have each suffered injuries, or will suffer such injuries, that would allow them to bring suit against Defendants in their own right.
6. Defendant James Davy is Commissioner of the Department of Human Services of New Jersey (DHS), a public entity covered by, inter alia, Title II of the Americans with Disabilities Act (ADA). 42 U.S.C. § 12131(1).
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7. Defendant Davy is ultimately responsible for ensuring that New Jersey operates its service systems in conformity with the constitutions of the United States and New Jersey and with the ADA and Section 504 of the Rehabilitation Act (Section 504). He is sued in his official capacity.
8. DHS also operates state inpatient psychiatric facilities and is responsible for discharge planning, placement, and follow up for individuals residing in such facilities.
9. DHS is the recipient of federal funds and administers state mental health programs.
JURISDICTION
10. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (for civil actions arising under the laws of the United States), jurisdiction under 28 U.S.C. § 1343(a)(3)&(4) (for actions under laws providing for the protection of civil rights).
11. Plaintiff seeks declaratory and injunctive relief under 28 U.S.C. § 2201 et seq.
FACTS
A. The Origin of Conditional Extension Pending Placement
12. The New Jersey Supreme Court created the status of Conditional Extension Pending Placement (CEPP) in 1983 in the case In re S.L., 94 N.J. 128 (1983). At that time, the Task Force on Mental Commitments (Task Force) had been formed to suggest an appropriate way to
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treat institutionalized individuals who no longer met the commitment standard. Id. at 134. The Task Force recommended development of an intermediate standard of commitment that would cover “an individual who by reason of mental illness is unable to care for himself without some level of aid or supervision.” Id. at 139.
13. The New Jersey Supreme Court specifically declined to develop such an intermediate standard. Id. Rather, it recognized such continued commitment as being a violation of an individual’s due process rights and, therefore, found that the State could not keep non-dangerous individuals on committed status using its police powers. Id.
14. The court recognized, however, that in accordance with its parens patriae responsibility, it could not “cast [patients] adrift into the community when the individuals are incapable of survival on their own.” Id. at 140. The court held that the State “may therefore continue the confinement of such persons on a provisional or conditional basis to protect their essential well being pending efforts to foster placement of these individuals in proper supportive settings outside of the institution.” Id.
15. The court set forth strict procedural requirements for continued commitment under these circumstances. Of significance is the requirement of an initial placement review hearing within sixty days of the entry of an order of CEPP. Id. Thereafter, subsequent placement review hearings must occur at least every six months. Id. at 141.
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16. If placement is not possible, the court must determine whether the State has undertaken all good faith efforts necessary to place the individual in an appropriate setting outside of the psychiatric institution. Id.
17. At each of the placement review hearings, the State must show what efforts it has made to locate placement for the individual. If immediate placement is not possible, the court must determine if the State has undertaken all good faith efforts to ensure that the individual is placed in an environment least restrictive of his or her liberty within the institution. Id. at 141.
18. While the individual remains confined in the institution, all reasonable efforts must be made to improve the individual’s ability to function in a community-based setting. Id.
19. Only under these limited and strict conditions is “the continuing confinement of individuals who do not meet standards for commitment and are eligible for discharge but are not able to survive independently . . . in accord with due process.” Id. at 142.
20. The Plaintiff does not allege that CEPP status is illegal; rather the Plaintiff alleges that the Defendant’s practice and application of CEPP status runs afoul of his obligations under the ADA to comply with the landmark United States Supreme Court decision, Olmstead v. L.C., 527 U.S. 581 (1999).
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B. The Reality of Conditional Extension Pending Placement
21. The State has misused CEPP status to justify the continued confinement of thousands of individuals while simultaneously failing to develop suitable community supports for those individuals.
22. Every person on CEPP status bears the stigma inherent in being unnecessarily segregated from other citizens in the community.
23. The narrowly tailored due process protections of CEPP status, designed to permit hospitals to continue the confinement of individuals while the State develops a community placement, now serves as the very sword against the individuals it was designed to shield.
24. Excluding the State’s lone forensic hospital, on any given day nearly 50% of the individuals in New Jersey’s psychiatric hospitals are on CEPP status. In other words, nearly half of the people who are institutionalized in New Jersey’s psychiatric hospitals have been determined by a court no longer to require such institutionalized care.
25. While on CEPP status these individuals are routinely housed in the most restrictive part of the institution despite being viewed as ready to return to the community. These wards also contain the most volatile patients, including those who are on committed status and often have not yet been stabilized.
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26. The CEPP population remains on the most restrictive wards because of the lack of space in less restrictive parts of the hospitals such as cottages where greater freedoms in a comparatively more community-like setting are permitted.
27. There are few openings in cottages because the State has failed to move the cottage residents into the community. Consequently, no opportunity exists for other CEPP individuals in the hospitals’ more restrictive wards to move from those wards into the cottages or other less restrictive placements in the hospital.
28. CEPP patients residing on overcrowded and understaffed wards are routinely subject to abuse and neglect.
29. While remaining on restrictive and volatile hospital wards, CEPP patients routinely receive the same treatment by staff as involuntarily committed patients. For example, staff continues to grant and rescind privilege levels that determine whether or not the CEPP individual will be entitled to go outside on the grounds of the hospital, attend social activities, and use the library or other hospital facilities. It does not matter that a judge has determined that the individual no longer even needs to be hospitalized; a CEPP patient may not go outside for fresh air unless a staff member permits it.
30. While on CEPP status and confined to state hospitals, those individuals for whom intensive therapy is indicated are unable to receive such therapy because, apart from psychotropic medication, very limited therapy is offered in state psychiatric hospitals, even for conditions for which therapy, and not medication, is the recommended treatment.
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31. Despite being adjudicated as ready for community living, the individuals on CEPP status who are confined to institutions remain on locked wards without the ability to control simple events in their life such as turning lights on or off, when they will lie down to rest, when they will eat or sleep, when and if they will have access to the outdoors, and when they will shower.
32. By allowing the continued confinement of thousands of individuals under the above conditions, the Defendant has flagrantly failed to minimize the restrictions on the liberty of the individuals on CEPP status, as required by fundamental tenets of due process and human liberty. This failure has profoundly impacted, and continues to impact, the lives of thousands of citizens of this State. Examples of two such individuals who have been profoundly impacted by their extended stay on CEPP status follow.
33. Carol C. is a 60-year-old woman who was committed to a state psychiatric hospital in 1993. She was on committed status for less than one month when a New Jersey Superior Court Judge determined that she could be discharged to a community placement. Upon information and belief, Carol C. remained continuously on CEPP status from 1993 to March 2005. During most of that time, she remained in the most restrictive and volatile ward of the hospital; other patients assaulted her on numerous occasions, and she required emergency medical treatment at the local general hospital emergency room for such injuries.
34. While needlessly hospitalized since 1993, Carol C. was unable to participate in the activities she enjoyed, such as supported employment, attending church, and enjoying shopping in local stores.
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35. Another such individual, Brian B., is a 38-year-old male who has been hospitalized in a state psychiatric hospital and on CEPP status since 2003.
36. Brian wishes to reside in the community, and both a Superior Court judge and his doctors agree that he is ready for discharge.
37. He wishes to reside in a group home with his peers and would enjoy participating in community activities such as musical performances and dances.
38. He also enjoys cooking and would like to prepare, or assist in the preparation of, his own meals.
39. He enjoys long walks and trips to the mall.
40. Brian’s mother, who provides moral and emotional support to Brian, believes that he has been institutionalized for too long and looks forward to seeing him reside in the community.
41. Because there is no appropriate community placement for Brian B., he remains hospitalized in an extremely volatile ward of the hospital where his safety and security are in jeopardy on a daily basis.
42. The above examples are only two out of nearly a thousand individuals who are on CEPP status, individuals who are kept in institutions segregated from other citizens unnecessarily and against their will.
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C. The Failure to Create or Implement an Effective Plan
43. Since the landmark decision of Olmstead v. L.C., 527 U.S. 581 (1999), states have been required to create and implement a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings. New Jersey has ignored this important mandate and continued its shameful method of CEPP warehousing and institutional expansion.
44. In Frederick L. v. Dept. of Pub. Welfare, 364 F.3rd 487 (2004), the Court of Appeals for the Third Circuit has held that a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings and a waiting list that moves at a reasonable pace and which is not controlled by the State’s endeavors to keep its institutions fully populated – is a minimum requirement for states in this Circuit.
45. New Jersey has neither an effective plan nor a true waiting list, much less one that moves at a reasonable rate. In fact, the DHS’s true plan is not to discharge such individuals into the community, but rather to endeavor to keep its institutions fully populated with those individuals.
46. The percentage of individuals on CEPP status has been and remains consistently high. It is, therefore, an undeniable fact that the State is spending its allocated mental health funds on keeping institutionalized individuals on CEPP status rather than on developing community placements. In fact, a shockingly large portion of each dollar spent on New Jersey’s psychiatric institutions is being spent on individuals who are no longer on committed status and do not belong there.
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47. The dedication of such high dollar amounts to the institutionalization of individuals on CEPP status is exactly the prohibition the court set forth in Frederick L. when it proscribed the State’s endeavors to “keep its institutions fully populated.”
D. The Failure to Implement the Public Policy
48. It is the public policy of the State of New Jersey that adequate nonresidential facilities be provided for the treatment of individuals with mental illness, and that such facilities be closely integrated with other community health, welfare and social resources. N.J.S.A. 30:4-24(1)&(2).
49. It is also the public policy of the State of New Jersey that every patient in treatment in the State’s psychiatric hospitals shall be entitled to all rights set forth in the Patients’ Bill of Rights. N.J.S.A. 30:24.2 (Patients’ Bill of Rights).
50. Among the enumerated rights in the Patients’ Bill of Rights is the right to the least restrictive conditions necessary to achieve the purposes of treatment, N.J.S.A. 30:4-24.2e (2); the right to privacy and dignity, N.J.S.A. 30:4-24.2e (1); the right to be free from unnecessary or excessive medication, N.J.S.A. 30:4-24.2d (1); the right to be free from physical restraint and isolation, except for emergency situations, N.J.S.A. 30:4-24.2d (3); the right to be free from corporal punishment, N.J.S.A. 30:4-24.2d (4); the right to enforce any of these rights by civil action or other remedies otherwise available by common law or statute, N.J.S.A. 30:24.2h; including the right to seek a writ of habeas corpus based on violation of these rights. Id.
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51. By failing to administer services to Plaintiff’s constituents in the least restrictive conditions necessary to achieve the purposes of treatment, Defendant violates the public policy of the State as set forth in N.J.S.A. 30:4-24, the Patients’ Bill of Rights. N.J.S.A. 30:4-24.2e (2).
52. New Jersey’s Law Against Discrimination (LAD) is also an expression of the public policy of the State of New Jersey. It makes it unlawful to subject people to differential treatment based on, inter alia, mental or physical disability, or perceived disability. N.J.S.A 10:5-3 through 10:5-4.
53. The LAD prohibits unlawful discrimination against those with a mental or physical disability in employment, housing, places of public accommodation, credit and business contracts.
54. In preventing Plaintiff NJP&A’s constituents from being integrated into the community, the Defendant denies NJP&A’s constituents important advantages in public accommodations and in publicly assisted housing as guaranteed by the LAD, in violation of the public policy of the State.
55. It is also the public policy of the State of New Jersey that “[e]very individual who is mentally ill shall be entitled to fundamental civil rights . . . .” N.J.S.A. 30:4-24.1. One of the fundamental civil rights in New Jersey’s Constitution is the right to due process of law. N.J. Const. art. I, § I.
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56. Defendant violates the State’s public policy to guarantee the due process rights of individuals with mental illness by failing to have an effective plan to ensure their safe return to the community and by continuing their uneccesary confinement.
COUNT I Due Process
1. Plaintiff repeats and realleges each Paragraph of this Complaint as if set forth at length herein.
2. Defendant's conduct, as described in this Complaint, is carried out under the color and pretense of New Jersey state law.
3. Plaintiff NJP&A’s constituents, individuals on CEPP status, by definition cannot be retained under the State’s Police Powers because they are not a danger to themselves or others.
4. The State continues their commitment indefinitely based upon its parens patriae powers only.
5. The State has failed to make good faith efforts to place individuals on CEPP status in the community.
6. The State does not have the authority to continue confining these individuals indefinitely and without a legitimate and realistic plan for their return to and integration into the community.
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7. These indefinite restrictions on Plaintiff’s constituents’ liberty without an effective plan to ensure their safe release when they have been deemed suitable to return to the community by a reviewing court, deny these constituents their right to due process of law in violation of the Fourteenth Amendment to the United States Constitution. Such rights are enforceable under 42 U.S.C. § 1983.
COUNT II Violation of the Americans with Disabilities Act 1. Plaintiff repeats and realleges each Paragraph of this Complaint, and each Paragraph of Count I above, as if set forth at length herein.
2. Plaintiff NJP&A’s constituents are individuals with mental illness. They have mental impairments that substantially limit one or more major life activities.
3. Plaintiff’s constituents are qualified individuals with disabilities within the meaning of 42 U.S.C. § 12131(2).
4. Plaintiff’s constituents reside in the State’s psychiatric hospitals and have been adjudicated as being ready for discharge into the community through an Order of Conditional Extension Pending Placement. They wish to participate in more integrated community residential programs that meet their mental health needs.
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5. Institutional segregation of such persons who have been deemed able to live in and benefit from community settings perpetuates unwarranted assumptions that persons with mental illness are incapable or unworthy of participating in community life.
6. Confinement in an institution severely diminishes the everyday life activities of these individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
7. In order to receive needed treatment services, Plaintiff’s constituents must, because of their disabilities, relinquish the right to participate in community life that they could enjoy, while persons without mental disabilities can receive the services they need without similar sacrifice.
8. With reasonable accommodations by way of services and supports, Plaintiff’s constituents can be served in a suitably integrated setting.
9. Defendant is responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C.§§ 12131(1)(A) and (B).
10. Title II of the ADA prohibits Defendants from discriminating against individuals with disabilities in programs and activities. 42 U.S.C. §§ 12131, 12132. Defendant violates these provisions by discriminating against those on CEPP status who are unnecessarily segregated from the larger community.
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11. Title II requires that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). In the landmark decision Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that these provisions of law are violated when a state places people with mental illness in “unjustified isolation,” and that a person with mental illness may sue the state for failing to place him or her “in the most integrated setting appropriate to [his or her] needs.” Id.
12. The Defendants are obligated under the ADA to administer New Jersey’s programs in a manner that supports the availability of services and programs in the most integrated setting for individuals with disabilities.
13. The Defendant has failed to meet his obligation to provide services and programs in the most integrated setting and instead has kept, and continues to keep, thousands of individuals segregated in state psychiatric hospitals. Psychiatric hospitals are not the most integrated setting appropriate to the needs of persons on CEPP status.
14. The State cannot demonstrate that it has a comprehensive, effectively working plan for placing CEPP patients in less restrictive settings.
15. The State has no rational waiting list that moves individuals on CEPP status into the community at a reasonable pace.
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16. The State’s continued expansion of the capacity of its institutional psychiatric facilities is evidence that it intends to keep its institutions populated.
COUNT III Violation of The Rehabilitation Act 1. Plaintiff repeats and realleges each Paragraph of this Complaint, and each Paragraph of Counts I and II above, as if set forth at length herein.
2. Section 504 of the Rehabilitation Act provides: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794.
3. Regulations implementing Section 504 of the Rehabilitation Act provide that a
recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons . . . . 45 C.F.R. 84.4b(4).
4. DHS receives federal financial assistance.
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5. Plaintiff’s constituents are individuals who reside in institutions and are qualified to participate in more integrated community residential programs that meet their mental health needs.
6. With reasonable accommodations, Plaintiff’s constituents can be served in a suitably integrated setting.
7. Defendant violates Section 504 of the Rehabilitation Act by failing to administer services to Plaintiff’s constituents in the most integrated setting appropriate for them.
8. Defendant utilizes methods of administering its services that have the effect of subjecting individuals with disabilities to discrimination by keeping them unnecessarily segregated from the community.
9. Plaintiff’s constituents are qualified to participate in more integrated community residential programs that meet their mental health needs.
RELIEF REQUESTED
WHEREFORE, Plaintiff, New Jersey Protection and Advocacy, Inc., prays for the following relief:
A. Declaratory and injunctive relief;
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B. An Order requiring that Defendant promptly take such steps as are necessary to enable Plaintiff’s constituents to receive services in the most integrated setting appropriate to their needs;

C. An Order requiring the Defendant to pay a per diem monetary penalty for each day beyond the sixtieth day that the State continues to confine individuals deemed by a court to be suitable for return to the community;

D. An award of prevailing party costs, disbursements and attorney fees pursuant to, inter alia, 42 U.S.C § 1988;

E. An injunction ordering the Defendant to provide monthly reports to the Plaintiff that include information such as the number of individuals on CEPP status, their names, and other information the Plaintiff may require pursuant to its federal mandates;

F. Such other relief as the Court deems appropriate.

BY: s/ William Emmett Dwyer William Emmett Dwyer (WD 6894) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Floor Trenton, NJ 08608

DATED: May 19, 2005

BY: s/ Helen C. Dodick Helen C. Dodick (HD 4960) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Floor Trenton, NJ 08608
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Certification Pursuant to Rule 201.1(d)
William Emmett Dwyer certifies as follows:
The within civil action is based on an alleged violation of a right secured by the Constitution of the United States.
BY: s/ William Emmett Dwyer William Emmett Dwyer (WD 6894) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Fl. Trenton, NJ 08608
DATED: May 19, 2005
Certification of No Other Action
William Emmett Dwyer certifies as follows:
This matter is not the subject of any other action pending in any other court and is likewise not the subject of any pending arbitration proceeding or administrative proceeding.
BY: s/ William Emmett Dwyer William Emmett Dwyer (WD 6894) Attorney for Plaintiff New Jersey Protection and Advocacy, Inc. 210 South Broad, 3rd Fl. Trenton, NJ 08608
DATED: May 19, 2005
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

NEW JERSEY PROTECTION AND ADVOCACY, INC.
Plaintiff,
v.
JAMES DAVY, in his Official Capacity as Commissioner of the Department of Human Services
Defendant.

CIVIL NO. 05-1784 (SRC) OPINION

CHESLER, District Judge THIS MATTER comes before the Court on a Motion to Dismiss by Defendant James
Davey (docket entry # 6). This Court, having considered the papers submitted by the parties, for the reasons set forth below, and for good cause shown, DENIES Defendant’s Motion.

I. BACKGROUND OF THE CASE This case was filed by New Jersey Protection and Advocacy, Inc. (“NJP&A”) on behalf of approximately one thousand individuals who are currently confined in psychiatric hospitals in the state of New Jersey. NJP&A seeks to compel the Defendant, in his capacity as Commissioner of the New Jersey Department of Human Services, to provide community
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placements for individuals currently residing in state psychiatric hospitals that have been adjudicated by the state Superior Court as no longer meeting the standards for civil commitment. Under New Jersey law, the State may exercise its parens patriae power to continue confinement of these persons while the State develops an appropriate community placement for them, under a special status known as Conditional Extension Pending Placement (“CEPP”). See In Re S.L., 94 N.J. 128 (1983). NJP&A alleges that the State has used this CEPP status to confine individuals for excessive periods of time and has failed to implement an effective plan for discharging these individuals into the community.
NJP&A is a non-profit, federally funded agency that has been designated under federal statute to serve as a protection and advocacy system for people with disabilities in the state of New Jersey. Under this statute, NJP&A has the authority to pursue legal, administrative, and other appropriate remedies to ensure the protection of individuals with mental illness who are or will be receiving treatment in New Jersey. See 42 U.S.C. § 10801 et. seq. NJP&A is pursuing this action as an advocate for persons suffering from mental illnesses. They are seeking equitable remedies to secure the timely release of psychiatric patients who may have been wrongfully detained by the State, and to prevent future patients from allegedly wrongful detentions.
II. MOTION TO DISMISS The Defendant, pursuant to Fed. R. Civ. P. 12(b)(6), filed a motion to dismiss the Plaintiff’s claims. In their brief, the Defendant raised three points to contest the Plaintiff’s claims: (1) that the Plaintiff lacked constitutional standing to assert claims on behalf of its constituents; (2) that Commissioner Davy is immune from suit under Title II of the ADA and
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Section 504 of the Rehabilitation Act; and (3) that Commissioner Davy, acting in his official capacity, is not a “person” for the purposes of 42 U.S.C. § 1983. The Court will address each of the Defendant’s claims in turn.
A. The Plaintiff Has Sufficient Standing to Assert Claims on Behalf of its Constituents The Constitution and the courts have imposed requirements for plaintiffs to have proper
standing to bring suits in order to ensure that a plaintiff possesses “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). Associational standing may permit an organization to redress injuries to its members, even without a showing of any injury to the organization itself. United Food and Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 552 (1996).
Recognizing that “individuals with mental illness are vulnerable to abuse and serious injury,” Congress enacted the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (“PAMII”) to “ensure that the rights of individuals with mental illness are protected” and to assist states in establishing advocacy systems to “protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes.” 42 U.S.C. § 10801(a)(1), (b)(1), (b)(2)(A). PAMII expressly grants protection and advocacy groups, such as NJP&A, standing to pursue legal remedies on behalf of individuals with disabilities for violations of their rights. 42 U.S.C. § 10805(a)(1)(B). See also Senate Report 103-120, 103rd Congress, 1st Session, pp. 39-40 (August 3, 1993) (reprinted at 1994
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U.S.C.C.A.N. 164, 202-203). Despite this express Congressional grant, however, NJP&A must still satisfy Article III’s Constitutional requirements to attain standing to sue on behalf of its constituents. See United Food, 517 U.S. at 558. See also Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (noting that PAMII “cannot override constitutional standing requirements”).
The Supreme Court has set out three requirements for an associational plaintiff like NJP&A to have standing under Article III to sue on behalf of its members: (1) its members must have standing to sue on their own; (2) the interests it seeks to protect must be germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested may require the participation of individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
The Defendant does not challenge that NJP&A, given their organizational purpose, meets the requirements of the second prong, namely that its interests of protecting wrongfully detained psychiatric patients is germane to the organization’s purpose. The third prong of the test is not constitutionally required, but rather a matter of judicial prudence. United Food, 517 U.S. at 558. As such, it may be abrogated by Congress under a statute granting standing to an organization. Id. The Defendant does not contest that Congress’ statutory grant to NJP&A eliminates this third requirement in the present case.
The Defendant’s challenge is based on a claim that NJP&A does not meet with the requirements of the first prong of the Hunt. (Def. Reply Br. at 3.) They assert two claims to support their argument: (1) the implied plaintiffs in this case are not “members” of NJP&A, and (2) even if they were members of NJP&A, they would lack standing to bring a suit in their own
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names. (Id. at 2-3.)
A. NJP&A’s Constituents are “Members” for Associational Standing Purposes The Plaintiff contests NJP&A’s standing on the basis that, as a federally funded
organization, their constituents “play absolutely no membership role in the organization.” (Def.’s Br. at 8.) In support of their position, the Plaintiff cites to the Fifth Circuit holding in Ass’n for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation Center Bd. of Trustees, 19 F.3d 241 (5th Cir. 1994), where the Court held that a federally-funded Texas advocacy group did not satisfy the first prong of the Hunt test for associational standing on the grounds that its constituents were not members of the group. Id. at 244 (noting that “[t]he organization [bore] no relationship to traditional membership groups because most of its ‘clients’ . . . [were] unable to participate in and guide the groups efforts.”) This Court, however, finds the Fifth Circuit’s approach in this case to be excessively rigid and formalistic for such a constitutional analysis. This Court is more persuaded by the approach of the Eleventh and Ninth Circuits in finding that persons with mental illness are the functional equivalent of members of PAMII organizations like NJP&A for purposes of associational standing. See Oregon Advocacy Center, 322 F.3d at 1110 (holding mentally incapacitated persons “the functional equivalent of members [of a PAMII organization] for purposes of associational standing”), Doe v. Stincer, 175 F.3d 879, 886 (11th Cir. 1999) (holding PAMII organization “may sue on behalf of its constituents like a more traditional association may sue on behalf of its members”).
The individuals whose rights NJP&A is seeking to vindicate bear sufficient indicia of membership in NJP&A to satisfy the first prong of the Hunt test for associational standing.
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NJP&A is an advocacy group on behalf of disabled individuals, including the mentally ill, within the state of New Jersey. These individuals are the direct and primary beneficiaries of NJP&A’s activities, “including the prosecution of this kind of litigation.” Hunt, 432 U.S. at 344.
Although NJP&A derives its funding from the federal government, its constituents remain involved in all levels of the organization. Pursuant to federal law, the chairperson and at least 60% of the membership of NJPA’s Advisory Council, which guides the Association’s policies and procedures, is “comprised of individuals who have received or are receiving mental health services or family members of such individuals.” 42 U.S.C. § 1085(a)(6)(B). Federal law also requires similar participation of persons who are receiving mental health services or their family members on NJP&A’s Board of Directors, id. at § 1085(c)(2)(B), and these individuals currently comprise a majority of NJP&A’s Board. (Sara Mitchell Affidavit at ¶ 7.) Additionally, constituents have access to a direct grievance procedure, pursuant to federal law, to make their voice further heard within the organization. 42 U.S.C. § 1085(a)(9).
Like members of a traditional organization, NJP&A’s constituents have the power to exert significant influence over the Association’s priorities and activities. See Stincer, 175 F.3d at 886. NJP&A’s statutorily mandated interests also give it a shared interest in the outcome of this litigation. These factors are sufficient to satisfy this Court that NJP&A’s constituents have sufficient indicia of membership to justify NJP&A’s associational standing in this case.
B. NJP&A’s Members Have Standing to Sue in Their Own Right Having satisfied the requirement that NJP&A’s constituents are the functional equivalent
of members, Hunt also requires that at least one of NJP&A’s constituents would have had
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“standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food, 517 U.S. at 555. The Plaintiffs have presented, in their complaint, two examples of individuals they purport to represent who, according to their claims, have suffered tangible injury as a result of the Defendant’s actions. (Complaint at ¶¶ 33-41.) Additionally, they have put forth a general allegation that nearly 50% of the individuals currently in New Jersey psychiatric hospitals are on CEPP status, but remain in restrictive institutionalized care. (Complaint at ¶ 24.) “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). Accordingly, the Court is satisfied that the Plaintiff has sufficiently demonstrated, for purposes of evaluating the Defendant’s motion for dismissal, that at least some of their members have standing to sue in their own right - thereby satisfying the first requirement of Hunt and conferring associational standing upon NJP&A.
B. The Defendant is Not Immune from Suit Under the Eleventh Amendment While the Eleventh Amendment provides general immunity to states from suits brought
by citizens in federal court, it is well established that citizens may bring suits to enjoin state officials, acting in their official capacity, from violating the Constitution or laws of the United States. Ex parte Young, 209 U.S. 123, 155-56 (1908). In their opposition brief, Plaintiffs voluntarily withdrew their claims seeking monetary penalties against the Defendant, leaving only claims for injunctive relief. (Pl.’s Br. at 18.) On this basis, the Defendant, in their reply brief,
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withdrew their challenge, conceding that the remaining claims against the State for prospective injunctive relief1 fall squarely under the Ex parte Young doctrine, and are not barred by the Eleventh Amendment. (Def. Reply Br. at 6.)
C. The Defendant is a Person for Purposes of 42 U.S.C. § 1983 Because the Plaintiff is Seeking Injunctive Relief Under the Ex Parte Young Doctrine. In their complaint, the Plaintiff alleges that the continued and indefinite restrictions on
their constituent’s liberties constitute a violation of their Due Process rights as enforceable under 42 U.S.C. § 1983. (Complaint, Count I, ¶ 7.) While the Plaintiff is suing an individual, Mr. Davy is being sued in his official capacity as Commissioner of Human Services for the State of New Jersey. A suit, like this, against a state official, acting in their official capacity, is “no different from a suit against the State itself.” Defendants cite the Supreme Court in Will v. Michigan Dept. of State Police for their claim that a state, or a state official acting in their official capacity, is not a “person” under Section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
Unlike the Plaintiff in Will, however, NJP&A is seeking solely injunctive relief. As the Supreme Court in Will noted, “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official capacity actions for prospective relief are not treated as actions against the State.’” Id. at 71 (citing Kentucky v.
1 The Plaintiff is also seeking attorney’s fees for the prevailing party as part of their claims. The Defendant, in their reply brief, has withdrawn their claim that such costs are barred by the Eleventh Amendment, but reserves their right to renew the argument in the event that the issue of awarding prevailing party costs are ever reached in this matter. (Def. Reply Br. at 6.)
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Graham, 473 U.S.159, 167 (1985), Ex parte Young, 209 U.S. 123, 159-60). Accordingly, this Court finds that the Defendant, acting in their official capacity, is not immune from the Plaintiff’s claims for injunctive relief under Section 1983.
III. CONCLUSION For the reasons stated above, and for good cause shown, the Court denies Defendant’s Motion to Dismiss. An appropriate form of order will be filed herewith.

Date: September 30, 2005

s/Stanley R. Chesler Stanley R. Chesler, U.S.D.J.

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 Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 1 of 49

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF TRENTON

DISABILITY RIGHTS NEW JERSEY, INC., a New Jersey Non-profit Corporation,:
Plaintiff,
v.
JENNIFER VELEZ, in her Official Capacity as the Commissioner ofNew Jersey Department of Human Services
Defendant.

HON. FREDA L. WOLFSON, U.S.D.J. Civil Action No. 05-1784 (FLW)
Settlement Agreement

WHEREAS Disability Rights New Jersey, Inc. ("Plaintiff') brought suit in the above captioned matter against Jennifer Velez, in her capacity as Commissioner of Human Services for the State ofNew Jersey ("Defendant") (collectively the "Parties"); and
WHEREAS the Parties, through extended negotiations, have determined to resolve this matter; arid
WHEREAS the Parties intend through this Settlement Agreement (Agreement) to ensure that individuals who are on conditional extension pending placement ("CEPP") status pursuant to N.J. Ct. R. 4:74-7(h) (2), and in the State psychiatric hospitals, specifically Ancora Psychiatric Hospital, Greystone Park Psychiatric Hospital, Senator Garrett W. Hagedorn Psychiatric Hospital, and Trenton Psychiatric Hospital ("State Hospitals"), will be placed in the community in an appropriate manner within a defined time period; and
WHEREAS this Agreement resolves the claims brought by Plaintiff, including but not limited to 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 2 of 49
seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §794 ("Section 504") in the abovecaptioned matter; and
WHEREAS the Parties agree that the resolution of this case is in the best interests of the individuals served in the State Hospitals who are on CEPP status at present and those individuals who will be placed on CEPP status in the future ("Individuals").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: 1. Nothing in this Agreement shall be construed as an acknowledgment, admission, concession,
or evidence of liability of either Party regarding any of these claims, including those under the ADA, Section 504, the federal or State Constitutions, or federal or State law, regulations, rules, or policies, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding. 2. Pursuant to Fed. R. Civ. P. 41(a), the Parties will file in the United States District Court for the District of New Jersey, Vicinage of Trenton, this Agreement, together with a notice to conditionally dismiss the Complaint under the conditions set forth in this Agreement. This case will remain on the Court's inactive docket during the term of this Agreement as a means of ensuring compliance of the Parties with the Agreement. 3. The Effective Date of this Agreement shall be the date it is filed with the United States District Court, Vicinage of Trenton, and, unless otherwise specified, all time periods contained in this Agreement shall commence on that date. 4. Any action, task, or provision of services Defendant agrees to undertake in this Agreement shall mean that Defendant has agreed to undertake that action, task, or provision of services in keeping with "professional judgment" as defined by Youngberg v. Romeo, 457 U.S. 307
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(1982). To the extent any provision of this Agreement relating to undertaking an action, task or delivery of services requires that any action be taken or thing be done to a level of quality or in an amount that is not otherwise specified or quantified in the Agreement, or that is described as "reasonable" or "appropriate," such provision shall be interpreted to mean that level, quality, amount, or timeliness of care, treatment, or services that is consistent with "professional judgment" as enunciated in Youngberg. 5. Defendant shall substantially comply with all of the requirements of this Agreement. Substantial compliance shall mean that Defendant is complying with the material requirements of this Agreement. Isolated instances of non-compliance shall not preclude a finding of substantial compliance. In addition, a finding of non-compliance shall not be made in situations where an Individual was timely offered appropriate community placement consistent with Paragraph 8(B)(IV)(d), but the Individual's desire to wait for a specific community placement or change of mind regarding community placement causes delay in placement beyond the time frames set forth in Paragraph 8. 6. The Parties agree that a court's judgment that an Individual is on CEPP status means that the Individual has been adjudicated ready for discharge, but that there is no appropriate and available community based placement. Such judgment by a court cannot be supplanted by a contrary determination by the State's treating professionals. Nothing in this Agreement shall limit or prohibit the State or its officials or employees from seeking commitment or recommitment of any Individual consistent with New Jersey statutes, regulations, and court rules. 7. This Agreement obligates Defendant to have and implement a plan for community placement ("Plan") whose purpose, as further described in this Agreement, is to address how to
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accomplish the timely placement of all Individuals in the State Hospitals into the community in the most integrated settings appropriate to their needs. The Plan must comply with the requirements of Paragraph 8. The Parties agree that at the time of the filing of this Agreement, the "Home to Recovery-CEPP Plan: Plan to Facilitate the Timely Discharges of CEPP Patients in New Jersey's State Psychiatric Hospitals," dated January 2008, and produced in discovery as State Document# 907 (Bates No. S54900 - S54978) ("Home to Recovery"), meets the requirements for the Plan as set forth in Paragraph 8 of this Agreement except that the numerical and percentage goals and time frames set forth in Paragraph 8 shall supersede those set forth in Home to Recovery. Any future Plan or modifications to Home to Recovery must also meet the requirements set forth in Paragraph 8 of this Agreement. Before making any material modifications to the Plan or to Home to Recovery, Defendant will consult with Plaintiff. If Plaintiff believes that any modification to the Plan or to Home to Recovery constitutes a breach of the Agreement, Plaintiff may institute the dispute resolution process set forth in Paragraph 18. 8. The Plan shall include the following elements: A. Creation of RIST, Supportive Housing, PACT and Specialized Housing as follows:

FY2010 FY2011 FY2012 FY2013 FY2014

Total Placements to be Created
230 215 145 225 250 1065

Placements to be Created for Individuals on CEPP
180 145 95 125 150 695

Placements to be Created for the Prevention of Institutionalization
50 70 50 100 100 370

B. Targets for numbers or percentages of Individuals to be placed in the community are as follows:

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I. For the 297 Individuals who were placed on CEPP before July 1, 2008:
a. In FY2010, placement of 110 ofthe 297 Individuals; b. In FY2011, placement of 95 of the 297 Individuals; c. In FY2012, placement of 60 ofthe297 Individuals; d. In FY2013, placement of32 ofthe 297 Individuals; e. In FY2014, placement of all of the 297 remaining Individuals, if any.
II. Placement of all Individuals into community placements who were placed on CEPP
after 7/1/2008 as follows:
a. For Individuals who do not have "Legal Status" as defined, infra, (Non-legal
Status Individuals), as of the end ofFY2014:
1. 95% of Non-legal Status Individuals will be placed within 4 months or less of being placed on CEPP; and
11. The remaining 5% of Non-legal Status Individuals will be placed within 9 months or less of being placed on CEPP.
b. The targets for Non-legal Status Individuals will be phased in over 5 years as
follows:
1. By the end of FY2010: placement of 62% of Non-legal Status Individuals within 6 months or less of being placed on CEPP;
11. By the end of FY2011: placement of 68% of Non-legal Status Individuals within 6 months or less of being placed on CEPP;
iii. By the end of FY2012: placement of 77% of Non-legal Status Individuals within 4 months or less of being placed on CEPP;
iv. By the end of FY2013: placement of 85% of Non-legal Status Individuals within 4 months or less of being placed on CEPP;
v. By the end of FY2014: placement of 95% within 4 months or less of being placed on CEPP and placement of the remaining 5% within 9 months of being placed on CEPP.
c. For Individuals who have "Legal Status" (Legal Status Individuals), as of the end
ofFY2014:
1. 95% of Legal Status Individuals will be placed within 6 months or less of being placed on CEPP; and
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11. The remaining 5% of Legal Status Individuals will be placed within 12 months or less ofbeing placed on CEPP.
. d. The targets for Legal Status Individuals will be phased in over the five years as
follows:
1. By the end of FY2010: placement of 62% of Legal Status Individuals within 6 months or less of being placed on CEPP;
11. By the end of FY2011: placement of 68% of Legal Status Individuals within 6 months or less of being placed on CEPP;
iii. By the end of FY2012: placement of 77% of Legal Status Individuals within 6 months or less of being placed on CEPP;
iv. By the end ofFY2013: placement of 85% of Legal Status Individuals within 6 months or less of being placed on CEPP;
v. By the end ofFY2014: placement of95% ofLegal Status Individuals within 6 month or less, and placement of the remaining 5% within 12 months or less of being placed on CEPP.
III. While Plaintiff believes that Individuals can be placed in a shorter period of time than
the time frames set forth, supra, Defendant believes that these time frames are
essential for placing some Individuals, and the Parties have agreed to them for
purposes of settlement only.
IV. For the purposes of placements under this Agreement:
a. The following terms are defined as follows:
1. Legal Status shall mean Individuals who:
(1) are required to register under Megan's Law, N.J.S.A. 2C:7-1, et seq.; or
(2) have an unresolved immigration status; or
(3) have a history of offenses or dispositions by a court, of one of the
following:
(a) N.J.S.A. 2C:11-3 Murder; (b) N.J.S.A. 2C:11-4 Manslaughter; (c) N.J.S.A. 2C:14-2 Aggravated Sexual Assault, Sexual Assault; (d) N.J.S.A. 2C:14-3 Criminal Sexual Contact;
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(e) N.J.S.A. 2C:15-l(a) Robbery 1st Degree; (f) N.J.S.A. 2C:12-l(b) 1,2,3,4,7 Aggravated Assault; (g) N.J.S.A. 2C:17-1 or N.J.S.A. 2C:17-2 Aggravated Arson, Arson; (h) N.J.S.A. 2C:13-1 Kidnapping; or (i) A crime in another jurisdiction that is similar to one of the listed
cnmes. n. History of one of the listed crimes in Paragraph 8(IV)(a)(i)(3) shall mean that
the Individual was: (1) First committed by a court pursuant to N.J.S.A. 2C:4-4 (incompetent to stand trial) of one of the crimes; (2) First committed by a court pursuant to N.J.S.A. 2C:4-8 (not guilty by reason of insanity) of one of the crimes; (3) committed in lieu of being released following completion of a sentence to prison of one of the crimes; (4) adjudicated delinquent for one of the crimes or the equivalent in the juvenile justice code; or (5) convicted of one of the crimes.
iii. Key Principles of Supportive Housing shall mean permanence, affordability, choice, flexible supports, and community integration, and shall include the "Housing First" philosophy and approach described in Home to Recovery at page 29 In this approach, rental housing is provided upfront and is not contingent upon participation in treatment, rehabilitation or other services, and is not time-limited. Needed services, such as mental health or substance abuse treatment, rehabilitation, peer support, skills and resource development, are provided as wraparound services and both supplement and promote the consumer's successful housing retention. Permanence is
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reflected in lease-based or similar occupancy agreement type arrangements. Affordability requires tenants to pay in rent a specified portion of their income. Support services are accessible, flexible and promote housing stability. Housing promotes community integration and may be single scattered sites, clustered or shared settings. IV. Supportive Housing shall mean housing that incorporates the Key Principles of Supportive Housing and follows the traditional supportive housing model of access to affordable, lease-based housing linked with flexible support services. Housing opportunities are developed accessing various sources of funding and attempt to meet consumer preference. Housing is lease-based (or similar occupancy agreement) and consumers pay a specified portion of their income towards rent. Support services are provided and may include assistance with moving and settling into a new home and neighborhood; rehabilitation services such as skills development in areas of daily living, socialization, financial literacy; assistance with medication and illness selfmanagement; and peer support. Providers are encouraged to design programs that allow for flexible service delivery to meet the varying needs of consumers as they change over time. Housing settings can include individual units or shared living. v. RIST shall mean an enriched supportive housing model that incorporates the Key Principles of Supportive Housing and allows for greater staff-toconsumer ratios for increased intensity and frequency of support services. This approach to intensive residential support is flexible in design and mobile.
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Consumers are full partners in planning their own care and support service needs, who identify and direct the types of activities which would most help them maximize opportunities for successful community living. Staff support is provided through a flexible schedule which may be adjusted as consumer needs or interests change. RIST encourages consumer use of other community mental health treatment, employment and rehabilitation services, as needed and appropriate. v1. PACT, as defined more fully in N.J.A.C. 10:371-1.1, shall mean a service model that provides comprehensive, integrated rehabilitation, treatment and support services to persons with serious and persistent mental illness who have had repeated hospitalizations and who are at serious risk for psychiatric hospitalization. PACT, provided in vivo by a multi-disciplinary service delivery team, is the most intensive program element in the continuum of ambulatory community mental health care. Services to a person may vary in type and intensity. Treatment has no predetermined end point. vii. Integrated Case Management Services (ICMS) shall mean a collaborative outreach program designed to engage, support and integrate people with serious mental illness into the community and facilitate their use of available resources and supports in order to maximize their independence. vm. Specialized Housing shall mean housing and specialized services for Individuals with co-existing medical conditions requiring in-home support, challenging behaviors that respond to behavioral shaping or tailoring services, or other such additional conditions or needs requiring staff specifically skilled
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 10 of 49
to address such needs. Settings are typically shared housing or clustered settings and often involve new housing development. Specialized Housing shall incorporate the Key Principles of Supportive Housing to the extent practicable. b. The length of time an Individual is on CEPP status shall be calculated from the date of the most recent court order that placed the Individual on CEPP status. In other words, if an Individual is placed on CEPP status, remains on CEPP status for a period oftime, and is then recommitted pursuant to N.J. Ct. R. 4:74-7(f)(l), either while on CEPP status or following a discharge to the community, the prior time on CEPP status shall not be included in any future calculation of time on CEPP status. A "placement review hearing" pursuant to N.J. Ct. R. 4:74-7(f)(2), in which an Individual's present CEPP status is continued, does not constitute the "most recent court order that placed the Individual on CEPP status." c. The community placements provided to Individuals pursuant to the Plan shall be either in (i) community service capacity that shall be developed, consistent with the Key Principles of Supportive Housing, or (ii) existing community service capacity placements that are either under contract to the Department of Human Services or generally available to Individuals. All such placements in existing community service capacity under contract to the Department of Hurrian Services shall. incorporate, to the extent practicable, the Key Principles of Supportive Housing. For all placements in generally available community service capacity Defendant shall offer appropriate community mental health services to support the living arrangement, usually PACT or ICMS. Nothing in the Agreement shall
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 11 of 49
prevent an Individual from being discharged, when appropriate, to his or her own home, the home of a relative or a friend, or a living situation arranged and/or chosen by the Individual or his or her family or friends. In those situations, Defendant shall offer appropriate community mental health services to support the living arrangement. d. The community placement(s) provided to an Individual shall be the most integrated placement appropriate to the Individual's needs, taking into account the Individual's preferences, the location of the Individual's family and other natural supports, the availability of appropriate services, and the reasonableness of the placement in light of the cost of similar placements and other relevant factors consistent with the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). Defendant shall ensure that whenever possible, Individuals are offered a meaningful choice of community placements. V. Individuals Who Refuse Any Community Placement: a. In the event Defendant offers an Individual a placement in accordance with this Agreement and the Individual clearly and knowingly refuses the placement because the Individual does not wish to be placed in any community setting, Defendant shall be considered to have complied with the time frames related to this Individual and any statistics regarding Paragraph 8 targets shall incorporate this compliance. b. If the Individual clearly and knowingly refuses to be placed in the community, the reasons underlying the Individual's preference shall be addressed by the Individual's treatment team and other appropriate employees of Defendant.
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 12 of 49
"Clearly and knowingly" refusing to be placed in the community means that the Individual: i. has had an opportunity to express his or her preferences; n. has been informed of community alternatives and the recommended
community placement in a manner that reflects the Individual's ability to understand and communicate information; and iii. is provided the opportunity to visit and observe community settings of the type recommended, unless the Individual's treatment team determines that such a visit would be clinically inappropriate. c. For Individuals who refuse to be discharged to any community placement, Defendant shall ensure that the Individual's State Hospital treatment team or other appropriate staff of Defendant continue to discuss discharge planning with and recommend appropriate community placement options with specific types of providers to the Individual at each of his or her treatment team meetings and at other appropriate times and continue to assess whether the Individual continues to clearly and knowingly refuse to be placed in the community. In addition, the Individual's treatment team shall continue to offer the Individual additional opportunities to visit and observe community settings of the type recommended, unless the Individual's treatment determines that such a visit would be clinically inappropriate. d. An Individual who previously clearly and knowingly refused to be placed in any community setting may inform a member of the treatment team or any other appropriate staff person of Defendant that he or she now wishes to be placed in
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 13 of 49
the community. When an Individual does so, the date that the Individual notifies a member ofthe treatment team or other appropriate State Hospital staff that he or she wishes to be placed in the community shall be, for pur_Poses of the Agreement, the equivalent of the date on which the Individual was placed on CEPP. C. A description of the steps Defendant will take to meet the goals and objectives set forth in Paragraph 8 and in the Plan and Home to Recovery. D. Provisions for appropriate education as to community placement, community service options, community capacity, and community placement process for appropriate DHS, DMHS, and State Hospital staff, Individuals, their guardians (when applicable), family members of Individuals (when appropriate), and/or other appropriate groups identified; E. Provisions for continued implementation of appropriate assessment tools and procedures t<? determine what services are needed to support Individuals in the community; and F. Provision(s) for thorough periodic review of all potential funding sources for the Plan, and effective action to access those sources, including action to maximize appropriate Medicaid funds and action to reallocate DMHS funds, taking into account savings from State Hospital census reduction and other appropriate factors. 9. Defendant shall comply with the requirements set forth in Paragraph 8 as well as the principles set forth in the Plan itself and in Home to Recovery. Defendant's obligation to comply with the numerical and percentage goals and time frames set forth in Paragraph 8 is subject to the limitations in Paragraphs 14, 15, 16, 17, and 18. 10. The Parties have jointly agreed that Defendant shall retain Martha Knisley, Ph.D., as a Consultant for the purposes of making recommendations for further development and implementation of the Plan, including the development and financing of additional units of
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supportive housing. The Consultant shall be involved in planning for the education, training, and mentoring of the professionals (psychiatrists, psychologists, social workers, and others) at the State Hospitals and at the DMHS who will be expected to bring the practices of their professionals and the DMHS into alignment with best practices and compliance with the goals, time frames, and other requirements in this Agreement. A. The Consultant shall have ready access to the reports provided pursuant to Paragraph 13,
all documents underlying those reports, all documents related to implementation of the Plan and Home to Recovery, and any other information the Consultant considers necessary to perform her functions under the Agreement. The Consultant shall also have ready access to Individuals, with their consent, and to Defendant's staff and facilities. The Consultant shall execute a confidentiality agreement with the same provisions as the confidentiality agreement required by Paragraph 13(C). B. DMHS, Plaintiff and the Consultant shall have a quarterly conference call to discuss the status of the Consultant's work with DMHS. This quarterly conference call may be waived by the Parties if Plaintiff, DMHS, and the Consultant all agree it is not necessary. C. The Consultant shall keep Plaintiff and its representatives apprised of the status of her work. The Consultant may speak separately with either Party or its representatives. The Consultant shall have the discretion to determine whether information she learns or discusses in a separate discussion with one Party shall be kept confidential from the other Party. In exercising such discretion, the Consultant shall not compromise her obligation to keep Plaintiff and its representatives apprised of the status of her work.
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D. The Consultant shall be retained for three years from the date she is retained unless the Parties agree to discontinue the use of the Consultant before then or to extend the use of the Consultant thereafter.
E. Defendant shall bear all costs of the Consultant; however, the annual costs for the Consultant shall not exceed a total of $55,000 in the first year, $45,000 in the second year and $35,000 in the third year.
F. In the event it becomes necessary to replace Dr. Knisley, the identity of the new Consultant shall be jointly agreed to by both Parties as follows: I. Each Party shall submit the name, curriculum vitae, and contact information of at least one proposed Consultant to the other within 15 days of receiving notice of the need for a new Consultant. II. The Parties shall have 30 days from the date of receiving notice of the need for a new Consultant to determine the identity of the new Consultant based on those proposed or if that has not occurred by the thirtieth day, each Party shall submit the name, curriculum vitae, and contact information of at least one other proposed Consultant. III. If the Parties have not agreed on the identity of the Consultant after 30 days from the date of receiving notice of the need for a new Consultant, the Parties agree to mediate the matter for 15 days. The Parties, by mutual agreement in writing, may extend the 15 day mediation time frame. IV. If the Parties have not agreed on the identity of the Consultant after 45 days from the date of receiving notice of the need for a new Consultant, the Parties agree to have the Court determine the identity of the Consultant.
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V. The three-year term of the Consultant shall be extended by the amount of time the Consultant position remained vacant during the search for a replacement.
11. Defendant shall create an ongoing Olmstead workgroup for the period of the Plan's implementation. This workgroup shall provide ongoing policy and practice advice to the State Hospitals and the DMHS as the Plan is implemented. At the workgroup meetings, data on implementation and difficult implementation issues will be discussed, along with specific cases, as necessary to continue implementation. Key DMHS and State Hospital staff, a representative of DRNJ, or its successor, and the Consultant shall be among the permanent members of the workgroup. Other participants may be invited by Defendant to meetings depending on the topic at hand.
12. Defendant shall develop and/or enhance and implement assessment tools, data systems and tools, and other processes, as necessary, to implement the Plan.
13. Defendant shall provide reports to Plaintiff and the Consultant as follows: A. Three periodic reports, to be delivered on December 1, March 1, and June 1 of each year of the Agreement. The December 1 report shall cover July, August, and September. The March 1 report shall cover October, November and December. The June 1 report shall cover January, February and March. Each report shall contain the following information: I. For each resident on CEPP status during the reporting period: Name, client ID number, gender, name of State Hospital and unit, date of birth, county of residence, date of most recent admission to the facility, date placed on CEPP status, and if the resident has been discharged during the reporting period, date of discharge, and type of placement to which the person was discharged.
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II. The total number and percentage of Individuals who have been on CEPP status at each State Hospital and across all State Hospitals for less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4 months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Documents 1044 and 1045 produced in discovery will suffice to provide the information required by this paragraph.
III. The average length of time that CEPP residents have been on CEPP status at each State Hospital, and the average length of time that CEPP residents have been on CEPP status across all State Hospitals. Updates of the information (in the same format) provided in State Document 1046 produced in discovery will suffice to provide the information required by this paragraph.
IV. The number of Individuals who have been discharged from each State Hospital during the reporting period: a. broken down by type of placement to which they were discharged; and b. broken down by the number discharged after total length of stay in the State Hospital of less than 3 months, between 3 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years from date of admission to the State Hospital.
V. During the reporting period, complete information tracking rates of community placement of Individuals, broken down by percentage discharged in less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 18 of 49
months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Document 1045 produced in discovery will suffice to provide the information required by this paragraph. VI. During the reporting period, complete information tracking the extent to which Defendant is meeting the numerical and percentage goals and time frames for community placement set forth in the Plan and this Agreement. Such information shall include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals who have refused a placement pursuant to Paragraph 8(B)(V), the number of such Individuals, the reasons for the refusals, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such refusals. Such information shall also include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals whose preference or change of mind regarding community placement have caused delays in placement pursuant to Paragraph 5, the number of such Individuals, the reasons for such preferences or changes of mind, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such delays in placement. VII. For each State Hospital, the gross patient census, number of admissions, and the number of discharges made each month in the reporting period.
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B. An Annual Report by October 1 of each year, beginning on October 1, 2010, that covers the periodic information for April, May and June, as well as the entire State Fiscal Year, that contains the following information: I. For each resident on CEPP status during the reporting year: Name, client ID number, gender, name of State Hospital and unit, date of birth, county of residence, date of most recent admission to the facility, date placed on CEPP status, and if the resident has been discharged during the reporting period, date of discharge, and type of placement to which the person was discharged. II. During the reporting year, the total number and percentage of Individuals who have been on CEPP status at each State Hospital and across all State Hospitals for less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4 months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Documents 1044 and 1045 produced in discovery will suffice to provide the information required by this paragraph. III. During the reporting year, the average length of time that CEPP residents have been on CEPP status at each State Hospital, and the average length of time that CEPP residents had been on CEPP status across all State Hospitals. Updates of the information (in the same format) provided in State Document 1046 produced in discovery will suffice to provide the information required by this paragraph. IV. During the reporting year, the number of Individuals who have been discharged from each State Hospital:
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a. broken down by type of placement to which they were discharged; and b. broken down by the number discharged after total length of stay in the State
Hospital of less than 3 months, between 3 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years from date of admission to the State Hospital. V. During the reporting year, complete information tracking rates of community placement of Individuals, broken down by percentage discharged in less than or equal to 1 month, between 1 and 2 months, between 2 and 3 months, between 3 and 4 months, between 4 and 5 months, between 5 and 6 months, between 6 and 9 months, between 9 and 12 months, between 12 and 24 months, 2-5 years, and more than 5 years after being placed on CEPP status. Updates of the information (in the same format) provided in State Document 1045 produced in discovery will suffice to provide the information required by this paragraph. VI. During the reporting year, complete information tracking the extent to which Defendant is meeting the numerical and percentage goals and time frames for community placement set forth in the Plan and this Agreement. Such information shall include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals who have refused a placement pursuant to Paragraph 8(B)(V), the number of such Individuals, the reasons for the refusals, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such refusals. Such information shall also include data tracking the extent to which those numerical and percentage goals and time frame results reflect Individuals whose preference or change of mind regarding community
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 21 of 49
placement have caused delays in placement pursuant to Paragraph 5, the number of such Individuals, the reasons for such preferences or changes of mind, and efforts undertaken by Defendant to identify and address any clinical and/or systemic concerns related to such delays in placement. VII. For each State Hospital, the gross patient census, number of admissions, and the number of discharges made each month during the reporting year. VIII. Average annual cost per placement type and cost to the State per Individual based upon the discharge plan during the reporting year and for the time period from the Effective Date of the Agreement to the date of the report, broken down by type of placement and by the following expense categories: (1) all program costs, including costs of multiple programs if the Individual is engaged in more than one program upon discharge; and (b) rental assistance subsidy. Defendant maintains that DMHS does not collect consumer-specific data on other ancillary funds that help support the cost of community care (e.g., medication, primary healthcare, room and board not otherwise supported by a rental assistance subsidy). Average cost per placement for the program cost and rental assistance subsidy will be the average for all consumers using the program, regardless of whether they were on CEPP prior to being placed. IX. Total annual expenditures made by DMHS during the reporting year: a. for placements made pursuant to the Plan during the time period covered by the
report and to date, broken down by type of placement; b. of State Legislature's "Olmstead'' appropriation to implement Plan during the
time period covered by the report and during the time period from the Effective Date of the Agreement to the date of the report;
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X. Sources and amounts of federal and State funding, in addition to the State Legislature's "Olmstead'' appropriation, expended for community placements pursuant to the Plan during the time period covered by the report and during the time period from the Effective Date of the Agreement to the date of the report. The parties agree that DMHS shall report aggregate Medicaid revenue per program and shall not report consumer specific information about Medicaid reimbursed funding. The parties agree that DMHS shall not report data on other ancillary funds that help support the cost of community care (e.g., medications, primary health care, room and board not otherwise supplied by a rental assistance subsidy);
XI. Complete information reflecting the status of efforts to secure additional Medicaid and other sources of funding to implement the Plan, including efforts to reallocate DMHS funds;
XII. The sources and amount of and plan for the expenditure of the annual available funds to be used to implement the Plan in the upcoming year;
XIII. Complete information reflecting the effect of the Plan on the State Hospitals' census, State Hospital unit consolidations and closures, the amount of any savings realized therefrom, the amount of any such savings that have been used to implement the Plan in the reporting year, and the amount of any such savings that will be used to implement the Plan in the upcoming year.
XIV. Documents providing updates of the information (in the same format) provided in State Documents 1042,.
XV. Documents providing updates of the information provided in State Documents 1047.
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 23 of 49
XVI. Documents providing updates of the information provided in State Documents 1048.
C. The information in all reports required by Paragraphs 13(A) and (B) shall be treated as confidential to the extent that it comes within the terms of the confidentiality agreement attached to this Agreement as Exhibit A; however, the Parties shall not treat information as confidential that does not fall within the scope of the confidentiality order in this matter.
D. In the event that the Defendant determines to change the format of reports referred to in Paragraph 13(A) and (B), the new format shall contain the same categories of information as the referenced State Documents and Defendant shall notify Plaintiff prior to making the change(s).
E. The Parties shall meet within two weeks after submission of the second quarter report and the annual report of each year of the Agreement, or sooner if requested, to discuss any issues arising out of the report.
14. Funding ofthe Plan A. Defendant asserts that its ability to meet the numerical and percentage goals and time frames set forth in Paragraph 8 is subject to appropriation of funding by the New Jersey Legislature. For State Fiscal Year 2010, the Governor proposed a budget that includes $5 million for implementation of Defendant's numerical and percentage goals and time frames for FY2010, as set forth in Paragraph 8. Defendant believes that amount is sufficient to meet those numerical and percentage goals and time frames. In each subsequent year of this Agreement, Defendant agrees to request and seek as one of the Department's top priorities that the Governor submit, as part of the annual budget
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 24 of 49
recommendations, an amount sufficient to continue meeting the numerical and percentage goals and time frames set forth in Paragraph 8. Defendant asserts, however, that while Defendant will seek as one of the Department's top priorities an amount sufficient to continue meeting the numerical and percentage goals and timeframes set forth in Paragraph 8, the Governor, upon receiving various agencies' budget requests and top priorities, has the sole discretion to determine which of those agencies' budget priorities will be included in his budget for a given fiscal year and if included, at what level of funding. Furthermore, to the extent that the Governor includes funding at any level for this Agreement in his future budgets, Defendant asserts that the Legislature is not bound by the Governor's proposal in determining the level of funding. Therefore, Defendant asserts that it cannot guarantee the amount of funding that will be appropriated in subsequent fiscal years in order to implement the numerical and percentage goals and time frames set forth in Paragraph 8. The Parties agree that to the extent that (i) the Governor does not submit a budget with sufficient funds to enable Defendant to meet the numerical and percentage goals and time frames set forth in Paragraph 8, (ii) the Legislature does not appropriate sufficient funds to enable Defendant to meet the numerical and percentage goals and time frames set forth in Paragraph 8, or (iii) the Governor requires Defendant to reduce spending during the fiscal year such that Defendant may not have sufficient funds to meet the percentage goals and time frames set forth in Paragraph 8, Plaintiff and Defendant shall institute the applicable process set forth in Paragraphs 15 and 16, and Plaintiff shall be limited to the remedies set forth in Paragraph 16(C).
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B. Defendant has closed four units at the State Hospitals since April 1, 2005, due to reductions in the census of the State Hospitals, specifically, one ofthe Mountain Meadow Cottages at Greystone Park Psychiatric Hospital and three units at Ancora Psychiatric Hospital, and intends to continue to make adjustments to State Hospital operations to realize savings in operations. I. Annually, as part of each annual report submitted pursuant to Paragraph 13(B), Defendant will provide to Plaintiff a three-year projection of anticipated census of the State Hospitals. In developing the projection, Defendant will consider whether and to what extent State Hospital units can be closed and savings can be realized as a result of the discharges of people on CEPP status pursuant to this Agreement. Defendant shall propose as part of DRS's annual appropriations request, referred to in and subject to Paragraph 14(A), that the savings that can be realized from census reduction in the upcoming year be appropriated for the purpose of developing or supporting the community mental health system. II. Consistent with N.J.S.A. 30:4-177.54 et seq. and N.J.A.C. 10:10-1 et seq., Defendant shall take such actions as she is authorized to take to ensure that as a mental health facility closes or has a greater than 50 percent reduction in census, all funds are redirected to services in the community, thereby increasing the State's financial support of community mental health services for its citizens. Defendant will provide Plaintiff a copy of the annual report prepared pursuant to N.J.A.C. 10:10-2.1(e), as soon as it is ready. III. The Parties agree that (1) the annual census projections referred to in Paragraph 14(B) are not a commitment by Defendant to achieve the projected census reduction; and
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(2) although Defendant will take significant steps to divert unnecessary admissions, Defendant does not have absolute control over admissions to, and hence demand for State Hospital beds, and as such, the census may not decrease every year. 15. In the event that either (i) Defendant concludes that an annual appropriation is insufficient to meet the numerical and percentage goals and time frames set forth in Paragraph 8, or (ii) Defendant is ordered to reduce spending such that funds may not be available to meet the numerical and percentage goals and time frames set forth in Paragraph 8, the following shall occur: A. Defendant shall notify Plaintiff in writing within the first three months of the fiscal year or within 20 business days of being ordered to reduce spending. In that writing, Defendant shall identify the amount of funds available, describe in detail the plan for expenditure of the available funds to continue implementation of the Plan at a reasonable pace, and specify the resulting impact on the numerical and percentage goals and time frames set forth in Paragraph 8. Defendant shall include with that notice all underlying documents it is relying on to support its assertions. If Defendant does not provide the requisite notice set forth in this Paragraph, then Defendant may not assert insufficiency of funding by the Governor or Legislature as a defense to any allegation of breach during the particular fiscal year at issue. B. The Parties shall meet within 20 business days of this notification to discuss the amount of funds available and the plan for expenditure of these funds to continue implementation of the Plan at a reasonable pace and the resulting effect on the numerical and percentage goals and time frames set forth in Paragraph 8 At that meeting, Defendant shall provide all additional underlying documents it is relying on to support its assertions. Only if both
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Parties agree that such a meeting will not resolve the matter, may they agree in writing to waive this meeting and proceed accordingly. C. If, at the meeting, the Parties do not come to an agreement as to how Defendant will proceed to implement the Plan at a reasonable pace, Plaintiff shall have 30 days to institute the Dispute Resolution Process set forth in Paragraph 18 and remedies set forth in Paragraph 16(C). The Parties may agree in writing to extend the time frame for instituting the Dispute Resolution Process if they believe additional time is needed to confer in an attempt to come to an agreement. D. If Plaintiff does not institute the Dispute Resolution Process set forth in Paragraph 18 and Remedies set forth in Paragraph 16(C) within 30 days of the meeting held pursuant to Paragraph 15(B) and (C) or such other time as the Parties have agreed to pursuant to Paragraph 15(C), or if the Parties have agreed to waive the meeting, then within 30 days of receiving Defendant's notice pursuant to Paragraph 15(A), Plaintiff will have agreed that Defendant's revised plan for expenditure of the available State funds contained in the notice sent pursuant to Paragraph 15(A) and Defendant's execution of that plan shall constitute compliance with this Agreement for that fiscal year and that the numerical and percentage goals and time frames set forth in Paragraph 8, shall be adjusted accordingly, which may have the effect of requiring the Parties to agree to extend this Agreement in accordance with Paragraph 25. 16. The remedies in this Paragraph shall be the only remedies if (i) Plaintiff asserts that there are not sufficient State funds to meet the annual numerical and percentage goals and time frames for community placement; (ii) Plaintiff asserts that Defendant has failed to meet the annual numerical and percentage goals and time frames for community placement and Defendant
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asserts that it does not have sufficient funds and Defendant has complied with Paragraphs 15 (A) and (B); or (iii) Defendant has asserted that there are not sufficient funds to meet the annual numerical and percentage goals and time frames for community placement and Defendant has complied with Paragraphs 15 (A) and (B). A. The Party invoking the terms of Paragraph 16 shall do so by sending a written notice to
the other Party stating the factual basis for doing so, information supporting that assertion and whether the assertion arises under Paragraph 16(i), (ii) or (iii). B. If Plaintiff has invoked the terms of Paragraph 16(i) and Defendant has not had the opportunity to invoke the process set forth in Paragraph 15(A), Defendant shall do so within 20 days. The Parties shall follow the process set forth in Paragraph 15 (A) to (D). C. If the matter is not resolved as a result of the process in Paragraph 15 (A) to (D), then this entire Agreement shall be void and Plaintiff may either: I. reinstitute this lawsuit at any time within 45 days after the dispute resolution process
has been exhausted. Plaintiff may only invoke the remedy in Paragraph 16(C)(I) during State Fiscal Years 2010 and 2011; or II. file any other litigation. If Plaintiff exercises its right to void this Agreement and files other litigation, Defendant shall not object to the filing of such other litigation pursuant to L.Civ.R. 40.1(c) (D.N.J.). In any such other litigation, discovery produced in the present action may be used and shall be admissible at trial to the same extent as it would have been used or admissible in the present action. D. Nothing in this Agreement shall be construed to limit any of Defendant's defenses, and specifically, Defendant may raise insufficient appropriations as a defense to the reinstituted or other litigation filed by Plaintiffs.
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17. Remedies for Breach A. In the event either Party asserts that the other has breached any provision of this Agreement, the non-breaching Party may invoke the Dispute Resolution Process set forth in Paragraph 18. It shall not be considered a breach, however, and the process and remedies in Paragraphs 15 and 16 shall be the only available process and remedies in the situations set forth in Paragraph 16 (i), (ii), and (iii). If the Dispute Resolution Process set forth in Paragraph 18 does not resolve the dispute and after providing fourteen (14) days written notice to opposing counsel, the party asserting breach shall file, within 45 days of the written notice of intent to file the motion, a motion to enforce the Agreement, before the United States District Court for the District of New Jersey, which shall retain jurisdiction in order to resolve any such disputes. The motion shall be supported by a certification that the Dispute Resolution Process set forth in Paragraph 18 did not resolve the dispute under this Agreement. B. As part of a motion to enforce, the movant may seek an order extending the Agreement due to respondent's failure to substantially comply with the Agreement. C. Nothing in this Agreement shall be construed to limit the Defendant's defenses and specifically, Defendant may raise insufficient appropriations as a defense, in any motion to enforce the agreement or action for breach.
18. The following shall be the Dispute Resolution Process: A. Either party may invoke the Dispute Resolution Process in accordance with the terms of this Agreement by sending a written notice to the other party stating the factual basis of the dispute, citing the portion of this Agreement that authorizes the party to invoke the Dispute Resolution Process, and including information supporting the assertion. The
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other party shall make a written response that includes information supporting its assertions within 10 business days of receipt of the invoking party's notice and supporting information. B. From the date of receipt of the written response and supporting information, the Parties shall negotiate in good faith for 30 business days in an attempt to resolve the dispute unless the time is extended by written agreement of the Parties. C. If the Parties do not resolve the dispute through negotiations within 30 business days, the Parties shall agree to mediate the matter for 30 days on terms to be agreed upon and placed in writing by the Parties. The Parties, by mutual agreement in writing, may extend the 30-day mediation time frame. D. Each Party has proposed the name of a candidate to serve as the Mediator. The parties shall have 30 days from the effective date of this agreement to respond to the other Party's proposal. Thereafter, the parties shall have 30 days to reach an agreement as to the identity of the Mediator. E. The Mediator shall execute a confidentiality agreement with the same provisions as required in the confidentiality agreement in Paragraph 13(C): F. In the event that during the term of the Agreement, Mediator agreed upon by the parties pursuant to Paragraph 18(D) can no longer serve as the Mediator, the Parties shall use the same process set forth in Paragraph 1O(F) for replacement of the consultant, to replace the Mediator. G. Defendant shall pay all costs of the mediation. 19. The information in all reports required by Paragraphs 14, 15, 16, 17 and 18 shall be treated as confidential to the extent that it comes within the terms of the confidentiality agreement
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executed by the parties and attached as Exhibit A; however, the Parties shall not treat

information as confidential that does not fall within the scope of the confidentiality

agreement in this matter.

20. The Parties agree that Defendant shall pay Plaintiff $850,000.00 in full satisfaction of all

attorneys' fees and costs that Plaintiff has incurred in this litigation.

21. All notices and reports to be sent pursuant to this Agreement shall be sent by U.S. Mail,

return receipt requested or by hand delivery with a signed confirmation, to:

For Plaintiff:

For Defendant:

Executive Director Disability Rights New Jersey, or its successor 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608

Commissioner New Jersey Department ofHuman Services PO Box 700 Trenton, New Jersey 08625-0700

Director of Litigation Disability Rights New Jersey, or its successor 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608

Assistant Commissioner New Jersey Division of Mental Health Services P.O. Box 727 Trenton, New Jersey 08625-0727

22. Defendant at all times shall remain bound to comply with applicable New Jersey and federal

law.

23. This Agreement is enforceable only by the Parties and is binding upon the Parties, by and

through their officials, agents, employees, and successors. The Parties do not intend that this

Agreement shall create a private right of action in any civil, criminal or administrative action

in any person. Nothing in this Agreement is intended to divest any person(s) of any other

private right of action they may possess pursuant to State or federal law. No other person or

entity is intended to be a third-party beneficiary of the provisions of this Agreement for

purposes of any civil, criminal, or administrative action, and accordingly, no person or entity

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other than the Parties may assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action. 24. This Agreement may not be altered, amended, or modified except by writing duly executed by all of the undersigned Parties or their successors in interest. 25. The Agreement shall automatically terminate sixty days after Plaintiffs receipt of Defendant's final Annual Report, due October 1, 2014, pursuant to Paragraph 13(B), without the need for any action on behalf of any party, unless (i) the Parties have agreed in writing to extend the Agreement beyond that date; or (ii) either Party has invoked the Dispute Resolution Process before that date and the dispute at issue has not yet been resolved; or (iii) the Court has ordered an extension of the Agreement pursuant to Paragraph 17(A). If none of these three exceptions exist, the Parties agree that no court or other tribunal shall have the power to extend the Agreement past the automatic termination date. 26. This Agreement is enforceable only by the Parties and is binding upon the Parties, by and through their officials, agents, employees, and successors. 27. This Agreement supersedes any previous agreements, oral or written, between the Parties and shall constitute the entire, integrated Agreement of the Parties. No prior contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. 28. This is a mutually binding Agreement. 29. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.
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By their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement For Plaintiff:
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For Defendant:

,,,

July 28, 2009

Date

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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 35 of 49

ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for Jennifer Velez, Commissioner
of the Department of Human Services
By: Beth Leigh Mitchell Deputy Attorney General (609) 599-6869
Gerard Hughes Deputy Attorney General (609)777-4854
Laurie M. Tompkins Deputy Attorney General (609) 292-6120
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF TRENTON

DISABILITY RIGHTS NEW JERSEY, INC. A New Jersey Nonprofit corporation
Plaintiff,
v.
JENNIFER VELEZ, In her Official Capacity as Commissioner of Human Services for the State of New Jersey,
Defendant.

HON. FREDA WOLFSON, U.S.D.J Civil Action No. 05-1784 (FLW)
CONFIDENTIALITY AGREEMENT

WHEREAS, Disability Rights New Jersey, Inc. (Plaintiff) brought suit in the above captioned matter against Jennifer Velez,

EXHIBIT A

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 36 of 49
in her capacity as Commissioner of Human Services for the State of New Jersey (Commissioner); and
WHEREAS, a Discovery Confidentiality and Protective Order (Protective Order) was filed with the court on March 6, 2006 and signed by the Honorable Tonianne J. Bongiovanni, U.S. M. J. , attached hereto as Exhibit 1.
WHEREAS, the Parties executed a Settlement Agreement on July 28, 2009, resolving all claims in this matter; and
WHEREAS, this case will remain on the Court's inactive docket during the term of the Settlement Agreement; and
WHEREAS, it is anticipated that pursuant to the Settlement Agreement, the Commissioner may disclose records, which were considered confidential under the March 6, 2006, Protective Order; and
WHEREAS, pursuant to the Settlement Agreement, the Commissioner may determine to disclose records, which would be deemed privileged pursuant to the December 19, 2007, Letter Order of the Honorable Tonianne Bongiovanni, U.S.M.J., including but not limited to intra-agency discussions, budgetary requests and draft documents, or pursuant to another recognized privilege; and
WHEREAS, the Parties desire to both continue the terms of the March 6, 2006, Protective Order, and to extend confidentiality to records which would which would be deemed privileged pursuant to the December 19, 2007, Letter Order of the Honorable Tonianne
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Bongiovanni, U.S.M.J., including but not limited to intra-agency discussions, budgetary requests and draft documents, or pursuant to another recognized privilege;
NOW THEREFORE, the Parties consent and agree to the following terms of this Confidentiality Agreement:
1. Confidential material shall mean a. any material that is confidential pursuant to the March 6, 2006 Protective Order; and b. records which would be deemed p~ivileged pursuant to the December 19, 2007, Letter Order of the Honorable Tonianne Bongiovanni, U.S.M.J., including but not limited to intra-agency discussions, budgetary requests and draft documents, or pursuant to another recognized privilege;
2. The designation of Confidential Material may be made by the producing party by conspicuously stamping or otherwise placing or affixing on documents that are (or contain or refer to) Confidential Material the word "Confidential," on the front page of the document.
3. The parties shall not further reproduce, copy or otherwise disseminate Confidential Material to any person or agency for any other reason, nor disseminate or make public the records by any
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 38 of 49
means, direct or indirect, other than to the aforesaid attorneys or those individuals or groups identified in the Settlement Agreement.
4. All Confidential Material released to the Parties as part of fulfillment of the Settlement Agreement:
a. shall be kept strictly confidential and shall not be used by any Party, employees of a Party or a Party's attorneys of record, for any purpose other than the purposes of the Settlement Agreement; and
b. may not be disclosed to any other persons except for the Parties, employees of a Party, a Party's attorneys of record, the mediator and consultant appointed pursuant to the Settlement Agreement, and all other persons to whom disclosure is permitted pursuant to paragraphs 4 and 5 of the Protective Order (Exhibit 1) .
5. Any person to whom Confidential Material is to be disclosed, other than those identified in Paragraph 4, and including the mediator and consultant under the Settlement Agreement, shall first sign a confidentiality agreement with the same terms as the instant Agreement.
6. The Parties agree that disclosure of confidential material as defined in paragraph l(b) under this agreement does not constitute waiver of the deliberative process privilege or other privilege.
Page 4 of 7

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 39 of 49
7. No later than sixty (60) days after the expiration of the Settlement Agreement, all Confidential Material provided by the Commissioner pursuant to the Settlement Agreement and previously provided solely pursuant to the March 6, 2006 Protective Order, including all copies made for any reason, shall either be returned to Anne Milgram, Attorney General of New Jersey, through Beth Mitchell, Deputy Attorney General, or certified to have been destroyed at the expiration of the Settlement Agreement as set forth by 45 C.F.R. §164.512(e)(1}(v)(B), whether or not the Confidential Material is confidential pursuant to 42 U.S.C.A. §1320d et seg. (HIPAA), and its underlying regulations 45 C.F.R. 160 and 164 (HIPAA Privacy Rule) .
8. In the event that a good faith dispute arises regarding whether information is properly designated as Confidential Material, such that it is subject to the terms of this Confidentiality Agreement, the party disputing the assertion of confidentiality shall provide the producing party with a written statement setting forth the basis upon which the challenge to the assertion of confidentiality is based. Within fifteen (15) business days of receipt of such written statement, the party producing shall either:
a. withdraw the assertion of confidentiality; or
Page 5 of 7

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 40 of 49
b. file a motion seeking to have the Court determine whether the information is confidential pursuant to the claimed authority. In any such motion the producing party shall have the burden to prove that such information is confidential and each party shall bear its own costs.
9. In the event that a good faith dispute arises regarding whether an individual identified pursuant to Paragraphs 4 and 5 of this Confidentiality Agreement shall be required to keep the Confidential Material confidential pursuant to this Confidentiality Agreement, the party challenging the need for the individual to abide by this Confidentiality Agreement shall provide the other party with a written statement of the basis upon which it is believed that the identified individual need abide by the Confidentiality Agreement. Within fifteen (15) business days, the party asserting that the identified individual must keep the information confidential shall either:
a. withdraw the request to identify the individual as someone who must keep the Confidential Material confidential under the terms of this Confidentiality Agreement; or
b. file a motion seeking to have the court determine whether the individual is someone who must keep the information confidential pursuant to the terms of
Page 6 of 7

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 41 of 49
this Confidentiality Agreement. In any such motion the Party asserting the individual is someone who must abide by this Confidentiality Agreement shall have the burden to prove that such information is confidential and each Party shall bear its own costs.
We, the undersigned, hereby consent and agree to the terms of this Confidentiality Agreement: On behalf of Plaintiff, Disability Rights New Jersey, Inc.
~7'
DATE
On behalf of Jennifer Velez, Commissioner of the Department of Human Services
ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY
by: Beth Leigh Mitchell Deputy Attorney General
Page 7 of 7

Case 3:05-cv-01784-FLW-TJB Document 69-2
Case 3:05-cv-01784-FLW-TJB Document 27

Filed 07/29/2009 Page 42 of 49
Filed 03/06/2006 Page 1 of 8

ZULIMA V. FARBER ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for Kevin Ryan,
Acting Commissioner, New Jersey Department of Human Ser~ices
By: Beth Leigh Mitchell (BLM0651) Deputy Attorney General
Gerard Hughes (GH6680) Deputy Attorney General ( 60 9) 633-8197
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF TRENTON

NEW JERSEY PROTECTION AND ADVOCACY, A New Jersey Nonprofit corporation
Plaintiff,
v.
JAMES DAVY, In his Official Capacity as Commissioner of Human Services for the State of New Jersey,
Defendant.

HON. STANLEY R. CHESLER, U.S.D.J Civil Action No. 05-1784 (SRC)
DISCOVERY CONFIDENTIALITY AND PROTECTIVE ORDER

WHEREAS this matter is a contested matter filed in the United States District Court for the District of New Jersey and venued in the Vicinage of Trenton; and
WHEREAS, it is anticipated that The State of New Jersey, Department of Human Services (hereinafter "the State") may have to

EXHIBIT 1

Case 3:05-cv-01784-FLW-TJB Document 69-2 Case 3:05-cv-01784-FLW-TJB Document 27

Filed 07/29/2009 Page 43 of 49
Filed 03/06/2006 Page 2 of 8

disclose records which may contain protected health information within the meaning of the Health Insurance Portability and Accountability Act, Administrative Simplification, 42 U.S. C. A. §1320d et ~· and its underlying regulations, 45 C.F.R. 160 and 164 (HIPAA Privacy Rule) , generally, and specifically 4 5 C. F. R. 164.512(e), which provides that protected health information may be provided in a judicial proceeding where a protective order has been entered into; and
WHEREAS, it is anticipated that the State may have to disclose records in the custody of Department of Human Services, Division of Mental Health Services which may contain confidential information pursuant to N.J.S.A. 30:4-24.3, which can only be disclosed where a court has ordered same pursuant to N.J.S.A. 30:4-24.3(c) and the Court having found that non-disclosure of records that the State will produce pursuant to discovery in this litigation would be contrary to the public interest; and
WHEREAS, it is anticipated that New Jersey Protection and Advocacy, Inc. ("NJP&A") may have to disclose records that contain sensitive and confidential information including but not limited to medical conditions/treatment of NJP&A' s constituents and/or records that are protected from disclosure under 42 U.S.C. §10806.
WHEREAS, it is anticipated that third parties may have to disclose records that contain sensitive and confidential

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Case 3:05-cv-01784-FLW-TJB Document 69-2
Case 3:05-cv-01784-FLW-TJB Document 27

Filed 07/29/2009 Page 44 of 49
Filed 03/06/2006 Page 3 of 8

information including but not limited to medical conditions/treatment; and
WHEREAS, the parties consent and agree to the terms, form and entry of this Discovery Confidentiality and Protective Order ("Order") on the following terms and for good cause shown;
IT IS, therefore, on this 6th day of March, 2006, ORDERED that:
1. All confidential material set forth above and produced subject to the terms of this Order shall be termed "Confidential Material." The designation of Confidential Material may be made by the producing party by conspicuously stamping or otherwise placing or affixing on documents produced that are (or contain or refer to) Confidential Material the words "Confidential."
2. The parties shall not further reproduce, copy or otherwise disseminate Confidential Material to any person or agency for any other reason, nor disseminate or make public the records by any means, direct or indirect, other than to the aforesaid attorney, or the court having jurisdiction of the action except as specified in this Order; and
3. All Confidential Material released to the parties as part of discovery pursuant to this Order:

-3-

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 45 of 49
Case 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 4 of 8

a. shall be kept strictly confidential pursuant to HIPAA

Privacy Rule and shall not be used or disclosed for any

purpose other than the trial preparation in the above-

captioned mater, as specified in this Order, for which

this information was requested as required by HIPAA

Privacy

Rule

and

specifically

45

C.F.R.

§164. 512 (e) (1) (v) (A); and;

b. may not be disclosed to any other persons except for the

parties, the attorneys of record for the parties and

members of their law firms/organizations, or to persons

regularly employed in such law firms/organizations'

offices, or in accordance with the limitations set forth

in paragraph 5, to certain other persons as reasonably

necessary for the preparation or trial of this matter.

5. In addition to those persons listed in paragraph 4, t~

following persons may be given access to Confidential Material when

reasonably necessary for the conduct of this litigation:

a. Expert witnesses and consulting experts.

b. Court reporters involved in taking depositions in

this case.

c. Non-party witnesses, but only in the course of, and

to the extent necessary to conduct, depositions or

interviews of such witnesses.

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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 46 of 49
Case 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 5 of 8
d. Persons who were authors of the Confidential Material, or who were previous recipients of the Confidential Material.
e. Such other persons as may be identified in the course of the litigation and as agreed between counsel for the parties.
6. Any such person to whom Confidential Material is to be disclosed pursuant to this Order shall first be advised by the attorney making the disclosure that pursuant to this Order such person may not divulge any such Confidential Material to any other person not authorized hereunder to have access to such Confidential Material, and may not use such Confidential Material for purposes unrelated to this litigation and the reason for the disclosure in the course thereof. The attorney shall secure from each person an affidavit stating that such person has read this Order and agrees to be bound by it. Such affidavit shall be maintained in the possession of the attorney securing the affidavit until further order of the Court. Court reporters and deposition witnesses may satisfy this requirement by noting their agreement on the record;
7. No later than sixty ( 60) days after the conclusion of this litigation (including exhaustion of all appeals and/ or petitions for certiorari), all Confidential Material provided by the State pursuant to this Order, including all copies made for any reason, shall either be returned to Zulima V. Farber, Attorney General of
-5-

Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 47 of 49
Case 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 6 of 8
New Jersey, through Beth Leigh Mitchell, Deputy Attorney General, or certified to have been destroyed at the completion of this legal proceeding as required by the HIPAA Privacy Rule, 45 C.F.R. §164. 512 (e) (1) (v) (B).
8. No later than sixty (60) days after the conclusion of this litigation (including exhaustion of all appeals and/ or petitions for certiorari), all Confidential Material provided by NJP&A pursuant to this Order, including all copies made for any reason, shall either be returned to NJP&A or Pepper Hamilton LLP, or certified to have been destroyed at the GOmpletion of this legal proceeding.
9. To the extent that any of the Confidential Material is to be used as evidence in the above captioned matter, the party introducing such Confidential Material shall file a motion to seal pursuant to L. Civ. R. 5.3(c).
10. In the event that a good faith dispute arises regarding whether information is properly designated as Confidential Material, such that is subject to the terms of the Order, the party disputing the assertion of confidentiality shall provide the producing party with a written statement setting forth the basis upon which the challenge to the assertion of confidentiality is based. Within fifteen (15) business days of receipt of such written statement, the producing party shall either:
a. withdraw the assertion of confidentiality; or
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Case 3:05-cv-01784-FLW-TJB Document 69-2 Filed 07/29/2009 Page 48 of 49
Case 3:05-cv-01784-FLW-TJB Document 27 Filed 03/06/2006 Page 7 of 8
b. file a motion seeking to have the Court determine whether the information is confidential pursuant to the claimed authority. In any such motion the producing party shall have the burden to prove that such information is confidential.
11. In the event that a good faith dispute arises regarding whether an individual identified pursuant to paragraph S(e) of this Order shall be required to keep the Confidential Material confidential pursuant to this Order, the party challenging the need for the individual to abide by this Order shall provide the other party with a written statement of the basis upon which it is believed that the identified individual need abide by this Order. Within fifteen (15) business days, the party asserting that the identified individual must keep the information confidential shall either:
a. withdraw the request to identify the individual as someone who must keep the Confidential Material confidential under the terms of this Order; or
b. file a motion seeking to have the Court determine whether the individual is someone who must keep the Confidential Material confidential pursuant to the terms of the this Order. In any such motion the party asserting that the individual must abide by
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the terms of this Order shall have the burden to so prove.

s/ Tonianne J. Bongiovanni Hon. Tonianne Bongiovanni, U.S.M.J.

We, the undersigned, hereby consent and agree to the terms, form and entry of this Order:
Pepper Hamilton, LLP,

s/ Jeffrey A. Carr Nicholas M. Kouletsis Jeffrey A. Carr on behalf of Plaintiff, New Jersey Protection and Advocacy, Inc.

2/28/06 Date

ZULIMA V. FARBER ATTORNEY GENERAL OF NEW JERSEY

s/ Beth Leigh Mitcehll Beth Leigh Mitchell Deputy Attorney General on behalf of Kevin Ryan, Acting Commissioner, New Jersey Department of Human Services

2/28/2006 Date

-8-

 
 U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:05-cv-01784-FLW-TJB

DISABILITY RIGHTS NEW JERSEY, INC., v. VELEZ Assigned to: Judge Freda L. Wolfson Referred to: Magistrate Judge Tonianne J. Bongiovanni Cause: 42:12101 Americans with Disabilities Act

Date Filed: 04/05/2005 Date Terminated: 07/30/2009 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff
DISABILITY RIGHTS NEW JERSEY, INC. a New Jersey non-profit corporation

represented by JEFFREY A. CARR PEPPER HAMILTON LLP SUITE 400 301 CARNEGIE CENTER PRINCETON, NJ 08543-5276 (609) 452-0808 Email: carrj@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

NICHOLAS M. KOULETSIS PEPPER HAMILTON LLP 300 ALEXANDER PARK CN 5276 PRINCETON, NJ 08543-5276 (609) 452-0808 Email: kouletsisn@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

PATRICIA ANN LAUCH PEPPER HAMILTON, LLP 301 CARNEGIE CENTER SUITE 400 PRINCETON, NJ 08543 (609) 951-4139 LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM EMMETT DWYER 418 Burgundy St. Unit 10 New Orleans, LA 70112 United Sta

V.
Defendant
JENNIFER VELEZ in her official capacity as Commissioner of Human Services for the State of New Jersey

6095580476 Email: emmettdwyer@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JORDAN ADAM STERN PEPPER HAMILTON LLP 300 ALEXANDER PARK PRINCETON, NJ 08543 (609) 951-4236 ATTORNEY TO BE NOTICED
represented by BETH LEIGH MITCHELL OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 599-6869 Fax: (609) 292-0690 Email: beth.mitchell@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID L. DACOSTA OFFICE OF THE NJ ATTORNEY GENERAL DEPARTMENT OF LAW & PUBLIC SAFETY 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 341-3689 Email: dacosdav@dol.lps.state.nj.us TERMINATED: 11/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
KATIUSCA POLANCO OFFICE OF THE NJ ATTORNEY

GENERAL DEPARTMENT OF LAW & PUBLIC SAFETY 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 341-5096 Fax: (609) 777-4036 TERMINATED: 01/05/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 341-5096 Email: gerard.hughes@lps.state.nj.us ATTORNEY TO BE NOTICED
LAURIE MANUS TOMPKINS OFFICE OF THE ATTORNEY GENERAL 25 MARKET STREET P.O. BOX 112 TRENTON, NJ 08625 609-984-6439 Email: laurie.tompkins@dol.lps.state.nj.us ATTORNEY TO BE NOTICED

Date Filed 04/05/2005
04/05/2005

# Docket Text
1 COMPLAINT against JAMES DAVY ( Filing fee $ 250 receipt number 341338.) , filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,(tp ) (Entered: 04/05/2005)
Summons Issued as to JAMES DAVY.Days Due - 20. (tp ) (Entered: 04/05/2005)

05/19/2005 06/02/2005 06/03/2005 06/20/2005 06/21/2005
07/06/2005 07/07/2005
07/07/2005

2 AMENDED COMPLAINT against JAMES DAVY, filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,.(DWYER, WILLIAM) (Entered: 05/19/2005)
3 Application and Proposed Order for Clerk's Order to extend time to answer as to Amended Complaint. Attorney KATIUSCA POLANCO and KATIUSCA POLANCO for JAMES DAVY added. (POLANCO, KATIUSCA) (Entered: 06/02/2005)
Clerk's Text only order granting Application for extension of time for dft. James Davy to answer to 6/21/05 (ck) (Entered: 06/03/2005)
4 First MOTION for Extension of Time to File Answer re 2 Amended Complaint by JAMES DAVY. (Attachments: # 1Certificate of Service # 2 Certification # 3 Text of Proposed Order)(POLANCO, KATIUSCA) (Entered: 06/20/2005)
Set Deadlines as to 4 First MOTION for Extension of Time to File Answer re 2 Amended Complaint. Motion Hearing set for 7/18/2005 10:00 AM in Trenton - Courtroom 6W before Magistrate Judge John J. Hughes. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck ) (Entered: 06/21/2005)
5 First MOTION to Dismiss by JAMES DAVY. Responses due by 7/6/2005 (Attachments: # 1 Brief in support of motion to dismiss# 2 Certificate of Service)(MITCHELL, BETH) (Entered: 07/06/2005)
CLERKS OFFICE QUALITY CONTROL MESSAGE - Attachment #1 Brief to 52 Motion to Dismiss submitted by BETH MITCHELL, ESQ. on 7/6/05 did not contain a proper electronic signature (s/). PLEASE RESUBMIT THE DOCUMENT WITH THE PROPER ELECTRONIC SIGNATURE BY 7/12/05. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only.. (ck) (Entered: 07/07/2005)
Set Deadlines as to 5 First MOTION to Dismiss. Motion Hearing set for 8/1/2005 10:00 AM in Trenton - Courtroom 5E before Judge Stanley R. Chesler. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck) (Entered: 07/07/2005)

07/07/2005 07/08/2005
07/12/2005 09/09/2005 09/09/2005 09/19/2005 09/19/2005 09/19/2005 09/20/2005

6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) by JAMES DAVY. Responses due by 7/6/2005 (Attachments: # 1 Brief (revised ) in support of motion to dismiss# 2 Certificate of Service (revised))(MITCHELL, BETH) (Entered: 07/07/2005)
Set Deadlines as to 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court). Motion Hearing set for 8/1/2005 10:00 AM in Trenton - Courtroom 5E before Judge Stanley R. Chesler. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck) (Entered: 07/08/2005)
7 ORDER granting 4 Motion for Extension of Time to Answer TO 7/26/05 . Signed by Judge John J. Hughes on 7/12/05. (ms) (Entered: 07/12/2005)
8 BRIEF in Opposition re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (STERN, JORDAN) (Entered: 09/09/2005)
9 AFFIDAVIT in Support re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Certificate of Service)(STERN, JORDAN) (Entered: 09/09/2005)
10 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Declaration of Alison Barkoff# 2 Order# 3 Certificate of Service)(DWYER, WILLIAM) (Entered: 09/19/2005)
11 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Declaration of Ira Burnim# 2 Order# 3 Certificate of Service)(DWYER, WILLIAM) (Entered: 09/19/2005)
12 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Declaration of Jennifer Mathis# 2 Order# 3 Certificate of Service)(DWYER, WILLIAM) (Entered: 09/19/2005)
Set Deadlines as to 10 ; 11 ; & 12 MOTIONS for Leave to Appear Pro Hac Vice. Motion Hearing set for 10/17/2005 10:00 AM in Trenton Courtroom 6W before Magistrate Judge John J. Hughes. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS

09/20/2005
09/26/2005 09/27/2005 09/27/2005 09/27/2005 09/30/2005 09/30/2005 10/05/2005
10/06/2005
10/13/2005

SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck ) (Entered: 09/20/2005)
CLERK'S QUALITY CONTROL MESSAGE: Documents 10 ; 11 ; & 12 are not in compliance with Local Civil Rule 7.1(d)(1) which requires Briefs to be submitted as separate documents. While a Brief may be submitted as a SEPARATE ATTACHMENT, it is not to be a part of the moving papers. This message is for informational purposes only. (ck) (Entered: 09/20/2005)
13 REPLY to Response to Motion re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by JAMES DAVY. (MITCHELL, BETH) (Entered: 09/26/2005)
14 NOTICE of Appearance by JORDAN ADAM STERN on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (STERN, JORDAN) (Entered: 09/27/2005)
15 BRIEF in Opposition re 12 MOTION for Leave to Appear Pro Hac Vice, 10 MOTION for Leave to Appear Pro Hac Vice, 11 MOTION for Leave to Appear Pro Hac Vice filed by JAMES DAVY. (Attachments: # 1 Certificate of Service)(MITCHELL, BETH) (Entered: 09/27/2005)
16 Certification of Beth Leigh Mitchell (cert of service) on behalf of JAMES DAVY Re 13 Reply to Response to Motion. (MITCHELL, BETH) (Entered: 09/27/2005)
17 OPINION re 6 Amended MOTION to Dismiss (per 7/7/05 electronic notice from court) filed by JAMES DAVY, . Signed by Judge Stanley R. Chesler on 9/30/05. (ck) (Entered: 09/30/2005)
18 ORDER denying 6 Motion to Dismiss . Signed by Judge Stanley R. Chesler on 9/30/05. (ck) (Entered: 09/30/2005)
NOTICE of Hearing on Motion 10 MOTION for Leave to Appear Pro Hac Vice, 11 MOTION for Leave to Appear Pro Hac Vice, 12 MOTION for Leave to Appear Pro Hac Vice: Motion Hearing set for 10/17/2005 03:00 PM in Trenton - Courtroom 6W before Magistrate Judge John J. Hughes. (dg, ) (Entered: 10/05/2005)
19 REPLY to Response to Motion re 12 MOTION for Leave to Appear Pro Hac Vice, 10 MOTION for Leave to Appear Pro Hac Vice, 11 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Certification Supplemental Declaration in Support of Motions for Pro Hac Vice Admissions)(STERN, JORDAN) (Entered: 10/06/2005)
20 ANSWER to Amended Complaint by JAMES DAVY.(MITCHELL, BETH) (Entered: 10/13/2005)

10/17/2005 10/17/2005
10/19/2005 10/19/2005 10/19/2005 10/26/2005 11/22/2005 12/02/2005 01/05/2006 02/22/2006

21 NOTICE of Hearing: Initial Conference set for 11/14/2005 03:30 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (dg, ) (Entered: 10/17/2005)
Minute Entry for proceedings held before Judge John J. Hughes : Motion Hearing held on 10/17/2005 re 12 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,,, 10 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,,, 11 MOTION for Leave to Appear Pro Hac Vice filed by NEW JERSEY PROTECTION AND ADVOCACY INC.,,. (Court Reporter FTR / Glynn.) (dg, ) (Entered: 10/26/2005)
22 ORDER granting 10 Motion for Leave to Appear Alison Barkoff, Esq. Pro Hac Vice on behalf of New Jersey Protection and Advocacy, Inc. Signed by Judge John J. Hughes on 10/18/05. (ck ) (Entered: 10/19/2005)
23 ORDER granting 11 Motion for Leave to Appear Ira A. Burnim, Esq. Pro Hac Vice on behalf of New Jersey Protection and Advocacy, Inc. Signed by Judge John J. Hughes on 10/18/05. (ck) (Entered: 10/19/2005)
24 ORDER granting 12 Motion for Leave to Appear Jennifer Mathis, Esq. Pro Hac Vice on behalf of New Jersey Protection and Advocacy, Inc. Signed by Judge John J. Hughes on 10/18/05. (ck ) (Entered: 10/19/2005)
Pro Hac Vice fee: $ 150, receipt number 345678 received by Alison Barkoff, Esq., $150, receipt number 345679 received by Jennifer Mathis, Esq. & $150, receipt number 345680 received by Ira Burnim, Esq. (lk) (Entered: 10/26/2005)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni : Initial Pretrial Conference held on 11/22/2005. (mr) (Entered: 12/05/2005)
25 PRETRIAL SCHEDULING ORDER: Telephone Conference set for 3/13/2006 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Judge Tonianne J. Bongiovanni on 11/30/05. (ck) (Entered: 12/02/2005)
26 Substitution of Attorney - Attorney DAVID L. DACOSTA and DAVID L. DACOSTA for JAMES DAVY added. Attorney KATIUSCA POLANCO terminated.. (DACOSTA, DAVID) (Entered: 01/05/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 2/22/2006. Status Telephone Conference set for 3/21/2006 4:00 PM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 02/22/2006)

03/06/2006 03/21/2006 04/24/2006
04/26/2006 06/29/2006
07/10/2006 07/11/2006 07/26/2006 07/27/2006 08/17/2006

27 DISCOVERY CONFIDENTIALITY & PROTECTIVE ORDER. Signed by Judge Tonianne J. Bongiovanni on 3/6/06. (ck ) (Entered: 03/06/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 3/21/2006. Status Telephone Conference set for 4/24/2006 2:30 PM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff to initiate call. (mm) (Entered: 03/22/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 4/24/2006. Status Telephone Conference set for 6/29/2006 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff is to initiate the call. (mm) (Entered: 04/25/2006)
28 ORDER confirming that the Status Telephone Conference set for 6/29/2006 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni w/ the pltf's to initiate the call. Signed by Judge Tonianne J. Bongiovanni on 4/25/06. (ck) (Entered: 04/26/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 6/29/2006. Status Telephone Conference set for 7/11/2006 9:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff is to initiate the call. (mm) (Entered: 06/29/2006)
29 ORDER REASSIGNING CASE. Case reassigned to Judge Freda L. Wolfson for all further proceedings. Judge Stanley R. Chesler no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 7/10/06. (eh, ) (Entered: 07/12/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/11/2006. Status Telephone Conference set for 8/17/2006 11:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff to initiate. (mm) (Entered: 07/12/2006)
30 Letter SCHEDULING ORDER: Telephone Conference reset for 9/20/2006, 11:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni; Signed by Judge Tonianne J. Bongiovanni on 7/24/06 (DH) (Entered: 07/26/2006)
31 NOTICE of Appearance by GERARD ANDREW HUGHES on behalf of JAMES DAVY (HUGHES, GERARD) (Entered: 07/27/2006)
32 NOTICE of Appearance by JEFFREY A. CARR on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (CARR, JEFFREY) (Entered: 08/17/2006)

08/17/2006 09/20/2006 10/10/2006
12/15/2006 01/04/2007 02/22/2007
02/23/2007 06/13/2007 08/09/2007 08/10/2007

33 NOTICE of Appearance by NICHOLAS M. KOULETSIS on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (KOULETSIS, NICHOLAS) (Entered: 08/17/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/20/2006. (mm) (Entered: 09/20/2006)
34 SCHEDULING ORDER setting certain deadlines: Telephone Conference set for 2/1/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Pretrial Factual Discovery due by 6/30/2007.. Signed by Judge Tonianne J. Bongiovanni on 10/5/06. (ck, ) (Entered: 10/10/2006)
35 NOTICE of Change of Address by JEFFREY A. CARR (CARR, JEFFREY) (Entered: 12/15/2006)
36 LETTER ORDER adjourning the conference call to 22/22/07 at 10am . Signed by Judge Tonianne J. Bongiovanni on 1/4/07. (ck, ) (Entered: 01/04/2007)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 2/22/2007. Status Telephone Conference set for 6/13/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 02/23/2007)
37 ORDER confirming that the conference call is scheduled for 6/13/07 at 10am. Signed by Judge Tonianne J. Bongiovanni on 2/23/07. (ck, ) (Entered: 02/23/2007)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 6/13/2007. (mm) (Entered: 06/13/2007)
38 MOTION for Leave to Appear Pro Hac Vice by NEW JERSEY PROTECTION AND ADVOCACY INC.,. (Attachments: # 1 Brief in Support of Motion# 2 Declaration # 3 Text of Proposed Order # 4 Certificate of Service)(DWYER, WILLIAM) (Entered: 08/09/2007)
Set Deadlines as to 38 MOTION for Leave to Appear Pro Hac Vice. Motion Hearing set for 9/4/2007 10:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ck, ) (Entered: 08/10/2007)

08/14/2007 08/15/2007 08/16/2007
08/23/2007 08/23/2007 09/04/2007
10/05/2007 11/02/2007 11/29/2007 12/03/2007 12/12/2007 12/19/2007

39 ORDER granting 38 Motion for Andrew Penn, Esq. Leave to Appear Pro Hac Vice for pltf.. Signed by Judge Tonianne J. Bongiovanni on 8/14/07. (lk) (Entered: 08/14/2007)
40 Notice of Request by Pro Hac Vice to receive Notices of Electronic Filings. (DWYER, WILLIAM) (Entered: 08/15/2007)
CLERK'S QUALITY CONTROL MESSAGE: Regarding document 40 Request for electronic notification of pro hac vice counsel filed by W. Dwyer, Esq.. Counsel is advised that the required payment of $150 has not be received and recorded on the docket. No notice will be recorded until such payment has been received. Counsel is also advised that this request will need to be refiled once payment is recorded (ck ) (Entered: 08/16/2007)
Pro Hac Vice fee: for Andrew Penn $ 150, receipt number 359527 (lk) (Entered: 08/23/2007)
41 Notice of Request by Pro Hac Vice for Andrew Penn to receive Notices of Electronic Filings. (DWYER, WILLIAM) (Entered: 08/23/2007)
42 ORDER SCHEDULING CONFERENCE: Telephone Conference set for 11/1/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Judge Tonianne J. Bongiovanni on 9/4/07. (ck ) (Entered: 09/04/2007)
43 NOTICE of Appearance by PATRICIA ANN LAUCH on behalf of NEW JERSEY PROTECTION AND ADVOCACY INC., (LAUCH, PATRICIA) (Entered: 10/05/2007)
44 LETTER ORDER extending briefing schedule. Signed by Judge Tonianne J. Bongiovanni on 11/1/07. (lk) (Entered: 11/02/2007)
45 NOTICE by JAMES DAVY Withdrawal of David L. DaCosta as attorney appearing on behalf of Defendant James Davy(DACOSTA, DAVID) (Entered: 11/29/2007)
46 STIPULATED ORDER substituting defendant and amending caption. Signed by Judge Tonianne J. Bongiovanni on 11/30/07. (ck, ) (Entered: 12/03/2007)
47 CERTIFICATE OF SERVICE; Subpoena excuted on 12/6/07 by NEW JERSEY PROTECTION AND ADVOCACY INC., (ck, ) (Entered: 12/12/2007)
48 LETTER ORDER denying pltf's application to compel & directing the defendant to produce unredacted copies of certain documents within ten days. Signed by Judge Tonianne J. Bongiovanni on 12/19/07. (ck, ) (Entered: 12/19/2007)

12/20/2007 01/07/2008 02/06/2008
02/11/2008 03/13/2008 04/01/2008 04/11/2008 04/15/2008
04/22/2008 04/24/2008 05/05/2008
05/20/2008

49 Letter from New Jersey Protection & Adovocacy ( Patricia A lauch). (LAUCH, PATRICIA) (Entered: 12/20/2007)
50 STIPULATION and ORDER for discovery and setting teleconference for 2/6/2008 @ 11:00am Signed by Judge Tonianne J. Bongiovanni on 1/5/2008. (ss, ) (Entered: 01/07/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 2/6/2008. Status Telephone Conference set for 3/13/2008 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Plainitff is to initiate the call. (mm) (Entered: 02/06/2008)
51 LETTER ORDER: Settlement Conference set for 3/13/2008 11:00 AM before Magistrate Judge Tonianne J. Bongiovanni.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 2/8/08. (lk) (Entered: 02/14/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 3/13/2008. (mm) (Entered: 03/13/2008)
52 ORDER confirming defendant has until 4/9/08 to advise if another settlement conference is needed.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/31/2008. (tp ) (Entered: 04/01/2008)
Reset Hearings: Settlement Conference set for 4/22/2008 3:00 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 04/11/2008)
53 LETTER ORDER: Settlement Conference set for 4/22/2008 03:00 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/11/08. (ij, ) (Entered: 04/16/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 4/22/2008. (mm) (Entered: 04/25/2008)
54 ORDER tolling Discovery for 30 days. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/23/2008. (tp ) (Entered: 04/25/2008)
55 ORDER, ( Settlement Conference set for 5/20/2008 02:30 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni.). Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/2/2008. (tp ) (Entered: 05/05/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 5/20/2008. (mm) (Entered: 05/22/2008)

06/03/2008 07/02/2008 07/10/2008 08/11/2008 09/03/2008
09/04/2008 10/03/2008 10/06/2008 10/24/2008 10/24/2008 10/27/2008
10/29/2008

56 ORDER setting telephone conference for 7/2/2008. Signed by Magistrate Judge Tonianne J. Bongiovanni on 6/2/2008. (tp ) (Entered: 06/04/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/2/2008. (mm) (Entered: 07/08/2008)
57 NOTICE by NEW JERSEY PROTECTION AND ADVOCACY INC., Withdrawal of Appearance of Alison Barkoff(CARR, JEFFREY) (Entered: 07/10/2008)
58 LETTER ORDER setting phone conference for 9/3/2008 at 9:30am. Signed by Magistrate Judge Tonianne J. Bongiovanni on 8/11/2008. (tp ) (Entered: 08/11/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/3/2008. Status Telephone Conference set for 10/2/2008 2:00 PM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 09/03/2008)
59 LETTER ORDER confirming teleconference set for October 2, 2008 at 3:00 p.m. Signed by Magistrate Judge Tonianne J. Bongiovanni on 9/3/08. (ij, ) (Entered: 09/04/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 10/3/2008. (mm) (Entered: 10/03/2008)
60 LETTER ORDER re: settlement & discovery. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/3/08. (lk) (Entered: 10/06/2008)
61 STIPULATION re 1 Complaint, 2 Amended Complaint changing caption to reflect Plaintiff's new name by JENNIFER VELEZ. (MITCHELL, BETH) (Entered: 10/24/2008)
62 NOTICE of Appearance by LAURIE PAULA MANUS on behalf of JENNIFER VELEZ (Attachments: # 1 Certificate of Service)(MANUS, LAURIE) (Entered: 10/24/2008)
63 ORDER SCHEDULING CONFERENCE: Settlement Conference set for 12/10/2008 02:30 PM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/27/2008. (mmh) (Entered: 10/27/2008)
64 STIPULATED ORDER Substituting Plaintiff's Name and Amending Caption. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/28/2008. (mmh) (Entered: 10/29/2008)

12/10/2008 12/11/2008
02/11/2009
02/25/2009 03/23/2009 03/27/2009 03/27/2009 03/27/2009 04/02/2009 04/02/2009 04/30/2009

Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 12/10/2008. (mm) (Entered: 12/10/2008)
65 LETTER SCHEDULING ORDER: Telephone Conference set for 4/7/2009 10:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Final Pretrial Conference set for 11/30/2009 11:00 AM in Trenton - Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Discovery due by 4/15/2009. Dispositive Motions due by 9/25/2009; returnable 10/19/2009. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/10/2008. (mmh) (Entered: 12/11/2008)
Set/Reset Hearings: Please be advised Judge Wolfson has set a Status/Settlement Conference for 2/23/2009 at 10:00 AM in Trenton Courtroom 5E before Judge Freda L. Wolfson. Please have representatives with full authority to discuss settlement present. (jg, ) (Entered: 02/11/2009)
Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 2/25/2009, ( Settlement Conference continued to 3/23/2009 11:00 AM in Trenton - Courtroom 5E before Judge Freda L. Wolfson.). (jg, ) (Entered: 02/25/2009)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 3/23/2009. (jg, ) (Entered: 03/23/2009)
66 LETTER ORDER extending the time periods for fact discovery and expert reports to from 2/9/2009 to 4/20/2009. Signed by Judge Freda L. Wolfson on 3/25/2009. (mmh) (Entered: 03/27/2009)
CLERKS QUALITY CONTROL MESSAGE - Please note the Order attached to docket entry 66 filed by the Clerks office on 3/27/2009 was docketed in error. Please disregard. (mmh) (Entered: 03/27/2009)
67 LETTER ORDER extending the time periods for fact discovery and expert reports from 2/9/2009 to 4/20/2009. Signed by Judge Freda L. Wolfson on 3/25/2009. (mmh) (Entered: 03/27/2009)
68 LETTER ORDER postponing the 4/7/2009 status conference until further notice after the 4/20/2009 conference with Judge Wolfson. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/1/2009. (mmh) (Entered: 04/02/2009)
Case reassigned to Magistrate Judge Tonianne J. Bongiovanni. (mmh) (Entered: 04/02/2009)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 4/30/2009. (jg, ) (Entered: 04/30/2009)

05/07/2009 05/26/2009 06/10/2009 07/10/2009
07/13/2009
07/23/2009 07/29/2009 07/30/2009 07/21/2010 07/21/2010 07/22/2010

Set/Reset Hearings: Telephone Conference Call set for 5/26/2009 10:00 AM before Judge Freda L. Wolfson. (jg, ) (Entered: 05/07/2009)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 5/26/2009. (jg, ) (Entered: 05/27/2009)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 6/10/2009. (jg, ) (Entered: 06/10/2009)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Telephone Conference held on 7/10/2009, ( Settlement Conference set for 7/23/2009 10:00 AM in Trenton - Courtroom 5E before Judge Freda L. Wolfson.). (jg, ) (Entered: 07/10/2009)
CLERK'S QUALITY CONTROL MESSAGE: PATRICIA ANN LAUCH AND JORDAN ADAM STERN, do not have a correct e-mail address listed with the court and are not receiving his/her notices of electronic filing in this case. Pursuant to local rule 10.1 and court procedures, counsel and unrepresented parties are required to notify the court of any mailing or e-mail address changes. The court has deleted the invalid e-mail address. Attorneys should review the ECF link on our web site for information on maintaining your account and unrepresented parties, or those attorneys without access to maintaining their account, should notice the Clerk. (mem, ) (Entered: 07/13/2009)
Text Minute Entry for proceedings held before Judge Freda L. Wolfson: Settlement Conference held on 7/23/2009. (jg, ) (Entered: 07/28/2009)
69 STIPULATION of Dismissal by JENNIFER VELEZ. (Attachments: # 1 Settlement Agreement)(MITCHELL, BETH) (Entered: 07/29/2009)
***Civil Case Terminated. (mmh) (Entered: 07/30/2009)
70 NOTICE of Appearance by WILLIAM EMMETT DWYER on behalf of DISABILITY RIGHTS NEW JERSEY, INC. (DWYER, WILLIAM) (Entered: 07/21/2010)
71 NOTICE by DISABILITY RIGHTS NEW JERSEY, INC. to withdraw appearance of Jennifer Mathis (DWYER, WILLIAM) (Entered: 07/21/2010)
CLERK'S QUALITY CONTROL MESSAGE - Please review the document attached to docket entry 70 submitted by William Dwyer on 7/21/2010. It appears to be a withdrawal notice by Jennifer Mathis and not a Notice of Appearance for William Dwyer. If this document was attached in error, PLEASE RESUBMIT THE CORRECT DOCUMENT. This submission will remain on the docket unless otherwise ordered by the court. (mmh) (Entered: 07/22/2010)

07/22/2010
07/26/2010 12/08/2014 03/02/2017 10/03/2017

CLERK'S QUALITY CONTROL MESSAGE - The 71 Notice of Request to Withdraw from Case re: Jennifer Mathis filed by William Dwyer on 7/21/2010 was submitted incorrectly as a Notice. PLEASE RESUBMIT THE Request to Withdraw from Electronic Notification USING Notice to Withdraw from NEF as to Case found under Civil - Notices. Additionally, this document must be submitted with a proper scanned signature, as pro hac vice attorneys are not permitted to electronically sign documents. This submission will remain on the docket unless otherwise ordered by the court. (mmh) (Entered: 07/22/2010)
72 Notice to be terminated and withdraw from Notices of Electronic filing as to case. (DWYER, WILLIAM) (Entered: 07/26/2010)
73 LETTER ORDER extending the settlement agreement through 5/30/2016. Signed by Judge Freda L. Wolfson on 12/8/2014. (eaj) (Entered: 12/08/2014)
74 Letter from the Parties. (HUGHES, GERARD) (Entered: 03/02/2017)
75 Letter of Commendation signed by Judge Freda L. Wolfson on 10/2/2017. (mmh) (Entered: 10/03/2017)