Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA r

)

Department of Justice r

)

950 Pennsylvania Aver NW

)

Washington r DC 20530

)

)

Plaintiff r

)

)

v.

)

)

THE DISTRICT OF COLUMBIAi

)

THE HONORABLE ADRIAN M. FENTY r

)

Mayor of the District of Columbia r )

in his official capacity onlYr

)

1350 Pennsylvania Aver NW

)

Washington r DC 20004i

)

STEPHEN T. BARON r Director r

)

Department of Mental Health r

)

in his official capacity onlYr

)

77 P Streetr 4ili Floor r NE

)

Washington DC 20002i

)

and PATRICK J. CANAVAN r Chief

)

Executive Officer r St. Elizabeths )

Hospital r in his official

)

capacity onlYr

)

2700 Martin Luther King Jr Aver SE )

Washington r DC 20032

)

)

Defendants.

)

)

--------~------------------------)

Civ. No. 07-

COMPLAINT PLAINTIFF r THE UNITED STATES OF AMERICA ("Plaintiff rr ) r by its undersigned attorneysr hereby alleges upon information and belief: 1. The Attorney General ·files this Complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act r 42 U.S.C. § 1997[ to enjoin the

Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 2 of 11
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named Defendants from egre8iously and flagrantly depriving individuals housed in St. Elizabeths, Hospital of rights, privileges, or immunities secured and protected by the Constitution and laws of the United States.
Jurisdiction and Venue 2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. 3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein. 5. Venue in the District of Columbia is proper pursuant to 28 U.S.C. § 1391.
Defendants 6. Defendant District of Columbia owns and operates St. Elizabeths Hospital (liSt. ESII), and as such has responsibility for the services and suppo~ts provided to patients at St. Es. 7. St. Es is a District mental health hospital. 8. Defendant Adrian M. Fenty is the Mayor of the District of Columbia and, in that capacity, he has responsibility for the operation of St. Es.

Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 3 of 11
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9. Defendant Stephen T. Baron is the Director of the Department of Mental Healthr which has responsibility for overseeing the operation of St. Es.
10. Defendant Patrick Canavan is the Chief Executi've Officer Of St. Es.
11. The individual Defendants named in Paragraphs 8 through 10 are officers of the District of Columbia and are sued in their official capacity only.
Factual Allegations 12. Defendants are legally responsible r in whole or in partr for the operation of St. Es and for the health and safety of the persons residing in St. Es. 13. St. Es is an institution within the meaning of 42 U.S.C. § 1997(1). St. Es provides care to psychiatric patients committed civilly or in connection with criminal proceedings. 14. Defendants are obligated to operate St. Es in a manner that does not infringe upon the federal rights r as protected by the Fifth Amendment to the Constitution of the United States and by other federal law r of individuals confined to St. Es. 15. Defendants are obligated to provide treatment r supports r and services to individuals confined to St. Es consistent with the Americans with Disabilities Act and implementing regulations. 42 U.S.C. § 12101 et ~.r 28 C.F.R.

Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 4 of 11
-4Part 35.
16. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
17. Individuals are confined to, or reside at, St. Es because they have been determined by Defendants to have significant mental illness requiring extensive intervention and treatment.
18. St. Es' supports and services substantially depart from generally accepted professional standards of care, thereby exposing the individuals confined or residing there to significant risk, and in some cases, to actual harm.
19. St. Es' supports and services substantially depart from generally accepted professional standards of care in the following specific respects, among others:
a. the provision of adequate treatment planning; b. the provision of adequate assessments and
diagnoses; c. the provision of adequate psychiatric services; d. the provision of adequate psychological services; e. the provision of adequate rehabilitation therapy
services; f. the provision of adequate pharmacy services; g. the provision of adequate nursing and medical
services;

Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 5 of 11
-5h. the provision of adequate protections from undue
or unreasonable seclusion and restrainti and i~ the provision of adequate protections from harm. 20. St. Es' supports and services substantially depart from generally accepted professional standards of care in the provision of a sufficient number of adequately trained staff to render adequate supports and services as outlined in Paragraphs 18 through 19. 21. Defendants have failed and continue to fail to assess individuals residing in St. Es to ascertain whether these individuals are, within the confines of any court-ordered confinement, receiving adequate treatment, supports, and services in the most integrated setting appropriate to their individual needsi that those individuals whom professionals determine should be placed in community programs are placed in such programs, when appropriatei and that these individuals are served in the most integrated setting appropriate to their needs.
Violations Alleged COUNT ONE:
Violations of the Due Process Protections of the Fifth Amendment to the United States Constitution
22. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 21 as if fully set forth herein.

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- 623. The egregious and flagrant acts and omissions alleged in Paragraphs 18 through 20 constitute a pattern or practic~ that violates the federal rights, as protected by the Fifth Amendment to the Constitution of the United States and by other federal law, of individuals confined to St. Es. 24. Unless restrained ,by this. Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in Paragraphs ,18 through 20 that deprive St. Es' residents of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause ir'reparable harm to these residents .
COUNT TWO: Violations of the Americans with Disabilities Act, 25. The United States incorporates by reference the allegations set forth in Paragraphs 1 through 21 as if fully set forth herein. 26. The egregious and flagrant acts and omissions alleged in Paragraph 21 violate the Americans with Disabilities Act and implementing regulations. 42 U.S.C. § 12101 et seq., 28 C.F.R. Part 35. 27. Unless restrained by this Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in Paragraph 21 that deprive St. Es residents of rights, privileges, or immunities secured or protected by

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federal law, and will cause irreparable harm to these residents. PRAYER FOR RELIEF
28. The Attorney General is authorized under 42 U.S.C. § 1997 to seek equitable and declaratory relief.
WHEREFORE, the United States prays that this Court enter an order:
a. Declaring that the acts, omissions, and practices of Defendants set forth in Paragraphs 18 through 21 above constitute a pattern or practice of resistance to St. Es' residents' full 'enj oyment of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United Statesi
b. Permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in Paragraphs 18 through 21 above, and that this Court require Defendants to take such actions as will ensure that lawful conditions of institutionalization are afforded to residents of St. ESi and

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- 8c. Granting such other and further equitable relief
as the Court may deem just and proper.
Respectfully submitted,
Attorney General of the United States

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JEFFREY A. TAYLOR United States Attorney District of Columbia
RUDY CONTRERAS Chief, Civil Division United States Attorneys
Office District of Columbia

torney General s Division
6· kl\.~ ~r-<-.r ~ J c.,P
SHANETTA Y. UTLAR Chief Special Litigation Section
~~ESTON

154
torneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 (202) 305-1457 (202) 514-0212 (fax)

Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 10 of 11
Office of the Attorney General
Washington, D.C.

CERTIFICATE OF THE ATTORNEY GENERAL

I, Alberto R. Gonzales, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. District of Columbia, et al., I have complied with all subsections of 42 U.S.C. § 1997b(a) (1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a) (2). I further certify, pursuant to 42 U.S.C. § 1997b (a) (3), my belief that tl1is action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.

In addition, I certify that I have the "reasonable cause to believe," set forth in 42 U.S.C. § 1997a, to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997 have been met.

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

Signed this Washington, D.C.

3 day of __Il'I-'-tf-j!f-________, 2007, at

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

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

Case 1:07-cv-00889-TFH Document 1 Filed 05/11/07 Page 11 of 11

CERTIFICATE OF SERVICE

I hereby certify that a copy ?f the foregoing has been

served by First-Class mail, postage prepaid to:

ELLEN A. EFROS Chief, Equity 1 section Office of the Attorney General 441 4th Street, N.W. 6th Floor Washington, D.C. 20001

11h- on this

day of May, 2007.

LAUR WEINSTEIN Ass' ant United States Attorney 555 ourth Street, N. W. , Room E4B20 Washington, D.C. 20001
(202) 514-7133

 
 Case 1:07-cv-00889-TFH Document 5-1 Filed 06/25/07 Page 1 of 44

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FILED
JUN 25 2007
CLERK, U.S. DI3TRICT COURT DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
Plaintiff,
v.
THE DISTRICT OF COLUMBIA, Honorable Adrian M. Fenty, Mayor, District of Columbia, in his official capacity only; DEPARTMENT OF MENTAL HEALTH, Stephen T. Baron, Director, Department of Mental Health, in his official capacity only; and SAINT ELIZABETHS HOSPITAL, Patrick J. Canavan, Chief Executive Officer, Saint Elizabeths Hospital, in his official capacity only,
Defendants.

Civ. No. 07-~B't

SETTLEMENT AGREEMENT

Case 1:07-cv-00889-TFH Document 5-1 Filed 06/25/07 Page 2 of 44
TABLE OF CONTENTS
I. General Provisions .......................................... 3 I I . Definitions ................................................ 4 III. Compliance Officer ........................................ 5 IV. General Introduction ...................................... 6 V. Integrated Treatment Planning ............................... 7 VI. Mental Health Assessments ................................. 12 VII. Discharge Planning and Community Integration ............. 17 VIII. Specific Treatment Services ............................. 19
A. Psychiatric Care ...................................... 19 B. Psychological Care ................... ~ ................ 22 C. Pharmacy Services . . . . . . . . . . . . . . . . . . . .~. . . . . . . . . . . . . . . . . 25 D. Nursing and Unit-Based Services . . . . . . . . . . . . . . . . . . . . . . . 25 IX. Documentation ............................................. 27 X. Restraints, Seclusion, and Emergency Involuntary Psychotropic Medications ................................... 28 XI. Protection From Harm ...................................... 31 XII. Incident Management ...................................... 31 XIII. Quality Improvement ..................................... 35 XIV. Environmental Conditions ................................. 36 XV. Benchmarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 XVI. Terms and Conditions ..................................... 38

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I. GENERAL PROVISIONS
A. This Settlement Agreement (the "Agreement") is entered into between the United States and the District of Columbia; the District of Columbia Department of Mental Health; and Saint Elizabeths Hospital (collectively referred to as "the District").
B. The Agreement resolves the investigation conducted by the United States Department of Justice ("United States") at Saint Elizabeths Hospital (" SEH") pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. The Agreement addresses the corrective measures set forth by the United States in its letter to the District dated May 23, 2006 ("Findings Letter"). This Agreement does not serve as an admission by the District that corrective measures are necessary to meet the constitutional and statutory rights of the residents of SEH.
C. In conformity with CRIPA, this Agreement represents a voluntary effort by the District to meet the concerns raised by the United States' investigation. See 42 U.S.C. § 1997b (a) (2) (B) and § 1997g.
D. Nothing in this Agreement shall be construed as an acknowledgment, an admission, or evidence of liability of the District under CRIPA, the Constitution, or 'federal or District law, and this Agreement may not be used as evidence of liability in this or any other civil or criminal proceeding.
E. The signatures below of officials representing the United States and the District signify that these parties have given their final approval to this Agreement.
F. This Agreement is enforceable only by the parties or the Court. This Agreement is binding upon the parties, by and through their officials, agents, employees, and successors. No 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,

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accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action. Similarly, this Agreement does not authorize, nor shall it be construed to authorize, access to District documents by persons or entities not a party to this Agreement.
G. Since the United States issued the May 23, 2006 Findings Letter, the District has made progress in remedying the problems the United States identified in the Findings Letter. The parties agree that it is in their mutual interests to avoid all litigation concerning the care and conditions of patients at SEH. The parties further agree that resolution of this matter pursuant to this Agreement is in the best interests of SEH's residents.
H. All parties shall bear their own costs, including attorneys' fees, in this and any subsequent proceeding.
II. DEFINITIONS
A. Effective Date
The Effective Date of this Agreement shall be the date that a corresponding order is entered by the District Judge for the United States District Court for the District of Columbia. Unless otherwise specified, each provision of this Decree shall be implemented within one year of the Effective Date.
B. Saint Elizabeths Hospital
SEH consists of all current buildings and facilities and any buildings and facilities constructed, renovated, and/or designated as part of SEH in the future.

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C. Incident
As required under Section XII of this Agreement, SEH will identify categories and definitions of incidents to be reported and investigated, and such categories and definitions shall include, but not be limited to, death, abuse, neglect, and serious injury.
III. COMPLIANCE OFFICER
The District shall select, subject to the United States' approval, a Compliance Officer to promote compliance with and implementation of the provisions of this Settlement Agreement. The District shall pay the salary, costs, and expenses associated with the Compliance Officer and, if needed, shall provide sufficient funds to permit the Compliance Officer to hire staff and consultants to assist in carrying out the Compliance Officer's duties and responsibilities under the Agreement.
The Compliance Officer shall serve as the liaison between Saint Elizabeths Hospital, the District of Columbia, the Department of Mental Health, and the United States Department of Justice regarding compliance with this Settlement Agreement. The Compliance Officer's exclusive duties are to oversee and promote implementation of the provisions of the Agreement.
Specifically, the Compliance Officer's duties shall include, but not be limited to:
1. Monitoring and facilitating the District's compliance with each of the provisions in this Agreement;
2. Preparing semi-annual reports for the parties regarding compliance with each of the provisions of the Agreement;
3. Facilitating the organizing of and conducting formal meetings between the parties on a regular and periodic basis, at least quarterly, to update the parties regarding compliance with the Agreement, including areas of improvement and areas of concern; and

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4. Providing to the parties any relevant information known, or available to the Compliance Officer, under any provision of the Agreement upon reasonable request.
The Compliance Officer shall not be prohibited from conducting ex parte communications with the Department of Justice, Civil Rights Division, regarding any matter related to this Agreement.
IV. GENERAL INTRODUCTION
A. Care and treatment provided by SEH shall fully comply with the requirements of federal law, the United States Constitution, and consistent with generally accepted professional standards of care for the care and treatment of institutionalized persons and shall be designed to:
1. strengthen and support individuals' rehabilitation and recovery; and
2. enable individuals to grow and develop in ways benefiting their health and well-being.
B. Care and treatment shall be accomplished while making efforts to maximize individuals' safety, security, and freedom from undue bodily restraint. Staff interactions with individuals shall be therapeutic and respectful.
C. Each individual served by SEH shall be encouraged to participate in identifying his or her treatment goals and in selecting appropriate treatment options. Care and treatment shall be designed to address each individual's psychiatric treatment needs and to assist each individual in meeting his or her specific treatment goals, consistent with generally accepted professional standards of care. SEH shall ensure clinical and administrative oversight of, education of, and support to, its staff in planning and providing care and treatment consistent with these standards.

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V. INTEGRATED TREATMENT PLANNING
By 36 months from the Effective Date hereof, SEH shall provide integrated individualized services, and treatments (collectively "treatment") for the individuals it serves. SEH shall establish and implement standards, policies, and protocols and/or practices to provide that treatment determinations are coordinated by an interdisciplinary team through treatment planning and embodied in a single, integrated plan.
A. Interdisciplinary Teams
By 36 months from the Effective Date hereof, each interdisciplinary team's membership shall be dictated by the particular needs of the individual in the team's care, and, at a minimum, the interdisciplinary team for each individual shall:
1. Have as its primary objective the provision of individualized, integrated treatment and be designed to discharge or outplace the individual from SEH into the most appropriate, most integrated setting without additional disability;
2. be led by a treating psychiatrist or licensed clinical psychologist who, at a minimum, shall:
a. assume primary responsibility for the individual's treatment;
b. require that the patient and, with the patient's permission, family or supportive community members are active members of the treatment team;
c. require that each member of the team participates in assessing the individual on an ongoing basis and in developing, monitoring, and, as necessary, revising treatments;

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d. require that the treatment team functions in an interdisciplinary fashion;
e. verify, in a documented manner, that psychiatric and behavioral treatments are properly integrated; and
f. require that the scheduling and coordination of assessments and team meetings, the drafting of integrated treatment plans, and the scheduling and coordination of necessary progress reviews occur.
3. provide training on the development and implementation of interdisciplinary treatment plans, including the skills needed in the development of clinical formulations, needs, goals, interventions, discharge criteria, and all other requirements of section V.B., infra;
4. consist of a stable core of members, including the resident, the treatment team leader, the treating psychiatrist, the nurse, and the social worker and, as the core team determines is clinically appropriate, other team members, who may include the patient's family, guardian, advocates, clinical psychologist, pharmacist, and other clinical staff; and
5. meet every 30 days, during the first 60 days; thereafter every 60 days; and more frequently as clinically determined by the team leader.
B. Integrated Treatment Plans
By 36 months from the Effective Date hereof, SEH shall develop and implement policies and/or protocols regarding the development of treatment plans to provide that:
1. where possible, individuals have input into their treatment plans;

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2. treatment planning provides timely attention to the needs of each individual, in particular:
a. initial assessments are completed within 24 hours of admission;
b. initial treatment plans are completed within 5 days of admission; and
c. treatment plan updates are performed consistent with treatment plan meetings.
3. individuals are informed of the purposes and major side effects of medication;
4. each treatment plan specifically identifies the therapeutic means by which the treatment goals for the particular individual shall be addressed, monitored, reported, and documented;
5. the medical director timely reviews high-risk situations, such as individuals requiring repeated use of seclusion and restraints;
6. mechanisms are developed and implemented to ensure that all individuals adjudicated Not Guilty by Reason of Insanity ("NGRI") receive ongoing, timely, and adequate assessments by the treatment team to enable the courts to review effectively modifications in the individual's legal status;
7. treatment and medication regimens are modified, as appropriate, considering factors such as the individual's response to treatment, significant developments in the individual's condition, and the individual's changing needs;
8. an inter-unit transfer procedure is developed and implemented that specifies the format and content requirements of transfer assessments, including the mission of all units in the hospital; and

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9. to ensure compliance,. a monitoring instrument is developed to review the quality and .timeliness of all assessments according to established indicators, including an evaluation of initial evaluations, progress notes, and transfer and discharge summaries, and a review by the physician peer review systems to address the process and content of assessments and reassessments, identify individual and group trends, and provide corrective follow-up action. This requirement specifically recognizes that peer review is not required for every patient chart.
c. By 24 months from the Effective Date hereof, SEH shall
establish policies and/or protocols to provide that treatment planning is based on case formulation for each individual based upon an integration of the discipline-specific assessments of the individual. Specifically, the case formulation shall:
1. be derived from analyses of the information gathered including diagnosis and differential diagnosis;
2. include a review of clinical history, predisposing, precipitating, and perpetuating factors, present status, and previous treatment history;
3. include a psychopharmacological plan of care that includes information on purpose of treatment, type of medication, rationale for its use, target behaviors, possible side effects, and targeted review dates to reassess the diagnosis and treatment in those cases where individuals fail to respond to repeated drug trials;
4. consider biochemical and psychosocial factors for each category in Section V.C.2., supra;
5. consider such factors as age, gender, culture, treatment adherence, and medication issues that

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may affect the outcomes of treatment interventions;
6. enable the treatment team to· reach determinations about each individual's treatment needs; and
7. make preliminary determinations as to the setting to which the individual should be discharged, and the changes that will be necessary to achieve discharge whenever possible.
D. By 24 months from the Effective Date hereof, SEH shall
establish policies and/or protocols to provide that treatment planning is driven by individualized factors. Specifically, the treatment team shall:
1. develop and prioritize reasonable and attainable goals/objectives (i.e., relevant to each individual's level of functioning) that build on the individual's strengths and address the individual's identified needs;
2. provide that the goals/objectives address treatment (e.g., for a disease or disorder) and rehabilitation (e.g., skills/supports/quality of life activities);
3. write the objectives in behavioral and measurable terms;
4. provide that there are interventions that relate to each objective, specifying who will do what and within what time frame, to assist the individual to meet his/her goals as specified in the objective;
5. design a program of interventions throug~out the individual's day with a minimum of 20 hours of clinically appropriate treatment/rehabilitation per week; and
6. provide that each treatment plan integrates and coordinates all selected services, supports, and treatments provided by or through SEH for the

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individual in a manner specifically responsive to the plan's treatment and rehabilitative goals.
E. By 24 months from the Effective Date hereof, SEH shall develop or revise treatment plans, as appropriate, to provide that planning is outcome-driven and based on the individual's progress, or lack thereof. The treatment team shall:
1. revise the objectives, as appropriate, to reflect the individual's changing needs;
2. monitor, at least monthly, the goals, objectives, and interventions identified in the plan for effectiveness in producing the desired outcomes;
3. review the goals, objectives, and interventions more frequently than monthly if there are clinically relevant changes in the individual's functional status or risk factors;
4. provide that the review process includes an assessment of progress related to discharge; and
5. base progress reviews and revision recommendations on clinical observations and data collected.
VI . MENTAL HEALTH ASSESSMENTS
By 18 months from the Effective Date hereof, SEH shall ensure that each individual shall receive, after admission to SEH, an assessment of the conditions responsible for the individual's admission. To the degree possible given the obtainable information, the individual's treatment team shall be responsible, to the extent possible, for obtaining information concerning the past and present medical, nursing, psychiatric, and psychosocial factors bearing on the individual's condition, and, when necessary, for revising assessments and treatment plans in accordance with newly discovered information.

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A. Psychiatric Assessments and Diagnoses
1. By 24 months from the Effective date hereof, SEH shall develop and implement policies and procedures regarding the timeliness and content of initial psychiatric assessments and ongoing reassessments, including a plan of care that outlines specific strategies, with rationales, adjustments of medication regimens, if appropriate, and initiation of specific treatment interventions;
2. By 24 months from the Effective Date hereof, SEH shall develop an admission risk assessment procedure, with special pre~autions noted where relevant, that includes available information on the categories of risk (e.g., suicide, self­ injurious behavior, violence, ~lopements, sexually predatory behavior, wandering, falls, etc.); whether the risk is recent and its degree and relevance to dangerousness; the reason hospital care is needed; and any mitigating factors and their relation to current risk;
3. By 12 months from the Effective Date hereof, SEH shall use the most current Diagnostics and Statistics Manual ("DSM") for reaching psychiatric diagnoses;
4. By 18 months from the Effective Date hereof, SEH shall ensure that psychiatric assessments are consistent with SEH's standard diagnostic protocols;
5. By 12 months from the Effective Date hereof, SEH shall ensure that, within 24 hours of an individual's admission to SEH, the individual receives an initial psychiatric assessment, consistent with SEH's protocols;
6. By 12 months from the Effective Date hereof, SEH shall ensure that:

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a. clinically supported, and current assessments and diagnoses are provided for each individual;

b. all physician trainees completing psychiatric assessments are supervised by the attending psychiatrist. In all cases, the psychiatrist must review the content of these assessments and write a note to accompany these assessments;

c. differential diagnoses, "rule-out" diagnoses, and diagnoses listed as "NOS" ("Not Otherwise Specified") are addressed (with the recognition that NOS diagnosis may be appropriate in certain cases where they may not need to be justified after initial diagn'osis); and

d. each individual's psychiatric assessments, diagnoses, and medications are clinically justified.

"7.--

By 24-months from -the· Effective -Datehereof,SEH shall develop protocols to ensure an ongoing and timely reassessment of the psychiatric and biopsychosocial causes of the individual's continued hospitalization.

B. Psychological Assessments (these assessments may be completed by psychologists or graduate students in psychology under the supervision of psychologists.)

1. By 24 months from .the Effective Date hereof, SEH shall ensure that individuals referred for psychological assessment receive that assessment. These assessments may include diagnostic neuropsychological assessments, cognitive assessments, risk assessments and personality/differential diagnosis assessments, rehabilitation and habilitation interventions, behavioral assessments (including functional analysis of behavior in all settings), and personality assessments.

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2. By 24 months from the Effecti~e Date hereof, all psychological assessments, shall:
a. expressly state the purpose(s) for which they are performed;
b. be based on current, and accurate data;
c. provide current assessment of risk for harm factors, if requested;
d. include determinations specifically addressing the purpose(s) of the assessment; and
e. include a summary of the empirical basis for all conclusions, where possible.
3. By 24 months from the Effective Date hereof, previously completed psycho~ogical assessments of individuals currently at SEH shall be reviewed by qualified clinicians and, if indicated, referred for additional psychological assessment.
4. By 24 months from the Effective Date hereof, appropriate psychological assessments shall be provided, whenever clinically determined by the team.
5. By 24 months from the Effective Date hereof, when an assessment is completed, SEH shall ensure that treating mental health clinicians communicate and interpret psychological ~ssessment results to the treatment teams, along with the i~plications of those results for diagnosis and treatment.

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C. Rehabilitation Assessments
1. When requested by the treatment team leader, or otherwise requested by the treatment team, SEH shall perform a rehabilitation assessment, consistent with the requirements of this Settlement Agreement. Any decision not to require a rehabilitation assessment shall be documented in the individual's record and contain a brief description of the reason(s) for the decision.
2. By 24 months from the Effective Date hereof, all rehabilitation assessments shall:
a. be accurate as to the individual's functional abilities;
b. identify the individual's life skills prior to, and over the course of, the mental illness or disorder;
c. identify the individual's observed and, separately, expressed interests, activities, and functional strengths and weaknesses; and
d. provide specific strategies to engage the individual in appropriate activities that he or she views as personally meaningful and productive.
3. By 24 months from the Effective Date hereof, rehabilitation assessments of all individuals currently residing at SEH who were admitted there before the Effective Date hereof shall be reviewed by qualified clinicians and, if indicated, referred for an updated rehabilitation assessment.
D. Social History Assessments
By 18 months from the Effective Date hereof, SEH shall ensure that each individual has a social history evaluation that is consistent with generally accepted

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professional standards of care. This includes identifying factual inconsistencies among sources, resolving or attempting to resolve inconsistencies, explaining the rationale for the resolution offered, and reliably informing the individual's treatment team about the individual's relevant social factors.
VII. DISCHARGE PLANNING AND COMMUNITY INTEGRATION
Taking into account the limitations of court-imposed confinement and public safety, SEH, in coordination and conjunction with the District of Columbia Department of Mental Health ("DMH") shall pursue the appropriate discharge of individuals to the most integrated, appropriate setting consistent with each person's needs and to which they can be reasonably accommodated, taking into account the resources available to the District and the needs of others with mental disabilities.
A. By 12 months from the Effective Date hereof, SEH, in conjunction and coordination with DMH, shall identify at admission and consider in treatment planning the particular factors for each individual bearing on discharge, including:
1. those factors that likely would result in successful discharge, including the individual's strengths, preferences, and personal goals;
2. the individual's symptoms of mental illness or psychiatric distress;
3. barriers preventing the specific individual from being discharged to a more integrated environment, especially difficulties raised in previous unsuccessful placements, to the extent that they are known; and
4. the skills necessary to live in a setting in which the individual may be placed.
B. By 12 months from the Effective Date hereof, SEH shall provide the opportunity, beginning at the time of admission and continuously throughout the individual's

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stay, for the individual to be a participant in the discharge planning process, as appropriate.
c. By 12 months from the Effective Date hereof, SEH shall
ensure that each individual has a discharge plan that is a fundamental component of the individual's treatment plan and that includes:
1. measurable interventions regarding his or her particular discharge considerations;
2. the persons responsible for accomplishing the interventions; and
3. the time frames for completion of the interventions.
D. By 12 months from the Effective Date hereof when clinically indicated, SEH and/or DMH shall transition individuals into the community where feasible in accordance with the above considerations. In particular, SEH and/or DMH shall ensure that individuals receive adequate assistance in transitioning prior to discharge.
E. Discharge planning shall not be concluded without the referral of an individual to an appropriate set of supports and services, the conveyance of information necessary for discharge, the acceptance of the individual for the services, and the discharge of the individual.
F. By 12 months from the Effective Date hereof, SEH and/or DMH shall develop and implement a quality assurance/improvement system to monitor the discharge process and aftercare services, including:
1. developing a system of follow-up with community placements to determine if discharged individuals are receiving the care that was prescribed for them at discharge; and
2. hiring sufficient staff to implement these provisions with respect to discharge planning.

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VIII. SPECIFIC TREATMENT SERVICES
A. Psychiatric Care
By 24 months from the Effective Date hereof, SEH shall provide all of the individuals it serves routine and emergency psychiatric and mental health services.
1. By 24 months from the Effective Date hereof, SEH shall develop and implement policies and/or protocols regarding the provision of psychiatric care. In particular, policies and/or protocols shall address physician practices regarding:
a. documentation of psychiatric assessments and ongoing reassessments per the requirements of this Settlement Agreement;
b. documentation of significant developments in the individual's clinical status and of appropriate psychiatric follow up;
c. timely and justifiable updates of diagnosis and treatment, as clinically appropriate;
d. documentation of analyses of risks and benefits of chosen treatment interventions;
e. assessment of, and attention to, high-risk behaviors (e.g., assaults, self-harm, falls) including appropriate and timely monitoring of individuals and interventions to reduce risks;
f. documentation of, and responses to, side effects of prescribed medications;
g. documentation of reasons for complex pharmacological treatment; and
h. timely review of the use of "pro re nata" or "as-needed" ("PRN") medications and

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adjustment of regular treatment, as indicated, based on such use.
2. By 18 months from the Effective Date hereof, SEH shall develop and implement policies and/or protocols to ensure system-wide monitoring of the safety, effectiveness, and appropriateness of all psychotropic medication use. In particular, policies and/or protocols shall address:
a. monitoring of the use of psychotropic medications to ensure that they are:
1. clinically justified;
ii. prescribed in therapeutic amounts, and dictated by the needs of the individual;
iii. tailored to each individual's clinical needs and symptoms;
iv. meeting the objectives of the individual's treatment plan;
v. evaluated for side effects; and
vi. documented.
b. monitoring mechanisms regarding medication use throughout the facility. In this regard, SEH shall:
1. develop, implement and update, as needed, a complete set of medication guidelines that address the medical benefits, risks, and laboratory studies needed for use of classes of medications in the formulary;
ii. develop and implement a procedure governing the use of PRN medications that includes requirements for specific identification of the behaviors that

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21

result in PRN administration of medications, a time limit on PRN uses, documented rationale for the use of more than one medication on a PRN basis, and physician documentation to ensure timely critical review of the individual's response to PRN treatments and reevaluation of regular treatments as a result of PRN uses;

iii.

establish a system for the pharmacist to communicate drug alerts to the medical staff; and

iv. provide information derived from Adverse Drug Reactions, Drug Utilization Evaluations, and Medication Variance Reports to the Pharmacy and Therapeutics, Therapeutics Review, and Mortality and Morbidity Committees.

3. By 36 months from the Effective Date hereof, SEH shall provide adequate levels of psychiatric staffing to ensure coverage by a full-time psychiatrist for not more than 12 individuals on the acute care units and no more than 24 individuals on the long-term units.

4. SEH shall ensure that individuals in need are provided with behavioral interventions and plans with proper integration of psychiatric and behavioral modalities. In this regard, SEH shall:

a. ensure that psychiatrists review all proposed behavioral plans to determine that they are compatible with psychiatric formulations of the case;

b. ensure regular exchanges of data between the psychiatrist and the psychologist; and

c. integrate psychiatric and behavioral treatments.

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5. By 24 months from the Effective Date hereof, SEH shall review and ensure the appropriateness of the medication treatment.
6. By 24 months from the Effective Date hereof, SEH shall ensure that individuals are screened and evaluated for substance abuse.
7. By 24 months from the Effective Date hereof, SEH shall institute an appropriate system for the monitoring of individuals at risk for Tardive Dyskinesia ("TO"). SEH shall ensure that the psychiatrists integrate the results of these ratings in their assessments of the risks and benefits of drug treatments.
B. Psychological Care
By 18 months from the Effective Date hereof, SEH shall provide adequate and appropriate psychological supports and services to individuals who require such services.
1. By 18 months from the Effective Date hereof, SEH shall provide psychological supports and services adequate to treat the functional and behavioral needs of an individual including adequate behavioral plans and individual and group therapy appropriate to the demonstrated needs of the individual. More particularly, SEH shall:
a. ensure that psychologists adequately screen individuals for appropriateness of individualized behavior plans, particularly individuals who are subjected to frequent restrictive measures, individuals with a history of aggression and self-harm, treatment refractory individuals, and individuals on multiple medications;
b. ensure that behavior plans contain a description of the maladaptive behavior, a functional analysis of the maladaptive

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behavior and competitive adaptive behavior that is to replace the maladaptive behavior, documentation of which reinforcers for the individual were chosen and what input the individual. had in their development, and the system for earning reinforcement;
c. ensure that behavioral interventions are the least restrictive alternative and are based on appropriate, positive behavioral supports, not the use of aversive contingencies;
d. ensure that psychologists adequately screen individuals for appropriateness of individualized behavior plans, particularly individuals who are subjected to frequent restrictive measures, individuals with a history of aggression and self-harm, treatment refractory individuals, and individuals on multiple medications;
e. ensure that psychosocial, rehabilitative, and behavioral interventions are monitored appropriately and implemented appropriately; and
f. ensure an adequate number of psychologists for each unit, where needed, with experience in behavior management, to provide adequate assessments and behavioral treatment programs.
2. By 18 months from the Effective Date hereof, SEH shall provide adequate clinical oversight to therapy groups to ensure that individuals are assigned to groups that are appropriate to their individual needs.
3. By 18 months from the Effective Date hereof, SEH shall provide adequate active psychosocial rehabilitation sufficient to permit discharge from SEH into the most integrated, appropriate setting available.

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4. By 18 months from the Effective Date hereof, SEH shall ensure that:
a. behavioral interventions are based on positive reinforcements rather than the use of aversive contingencies, to the extent possible;
b. programs are developed and implemented for individuals suffering from both substance abuse and mental illness problems;
c. where appropriate, a community living plan is developed and implemented for individuals with cognitive impairment;
d. programs are developed and implemented for individuals with forensic status recognizing the role of the courts in the type and length of the commitment and monitoring of treatment;
e. psychosocial, rehabilitative, and behavioral interventions are monitored and revised as appropriate in light of significant developments, and the, individual's progress, or the lack thereof;
f. clinically relevant information remains readily accessible; and
g. staff who have a role in implementing individual behavioral progr~ms have received competency-based training on implementing the specific behavioral programs for which they are responsible, and quality assurance measures are in place for monitoring behavioral treatment interventions.

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c. Pharmacy Services
By 36 months from the Effective Date hereof, SEH shall provide adequate and appropriate pharmacy services consistent with generally accepted professional standards of care. By 36 months from the Effective Date hereof, SEH shall develop and implement policies and/or protocols that require:
1. pharmacists to complete reviews of each individual's medication regimen regularly, on at least a monthly basis, and, as appropriate, make recommendations to treatment teams about possible drug-to-drug interactions, side effects, medication changes, and needs for laboratory work and testing; and
2. physicians to consider pharmacists' recommendations and clearly document their responses and actions taken.
D. Nursing and Unit-based Services
SEH shall within 24 months provide nursing services that shall result in SEH's residents receiving individualized services, supports, and therapeutic interventions, consistent with their treatment plans. More particularly, SEH shall:
1. Ensure that, before they work directly with individuals, all nursing and unit-based staff have completed successfully competency-based training regarding mental health diagnoses, related symptoms, psychotropic medications, identification of side effects of psychotropic medications, monitoring of symptoms and target variables, and documenting and reporting of the individuals' status;
2. Ensure that nursing staff monitor, document, and report accurately and routinely individual's symptoms, actively participate in the treatment team process and provide feedback on individual's

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responses, or lack thereof, to medication and behavioral interventions;
3. Ensure that nursing staff monitor, document, and report routine vital signs and other medically necessary measurements (i.e., hydration, blood pressure, bowel sounds and movements, pulse, temperature, etc.), including particular attention to individuals returning from hospital and/or emergency room visits; .
4. Ensure that nursing staff document properly and monitor accurately the administration of medications;
5. Ensure that, prior to assuming their duties and on a regular basis thereafter, all staff responsible for the administration of medication have completed successfully competency-based training on the completion of the Medication Administration Records;
6. Ensure that all failures to properly sign the Medication Administration Record are tre~ted as medication errors, and that appropriate follow-up occurs to prevent recurrence of such errors;
7. Ensure that staff responsible for medication administration regularly ask individuals about side effects they may be experiencing and document responses;
8. Ensure that staff monitor, document, and report the status of symptoms and target variables in a manner enabling treatment teams to assess individuals' status and to modify, as appropriate, the treatment plan;
9. Ensure that each individual's treatment plan identifies:
a. the diagnoses, treatments, and interventions that nursing and other staff are to implement;

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b. the related symptoms and target variables to be monitored by nursing and other unit staff; and
c. the frequency by which staff need to monitor such symptoms.
10. Establish an effective infection control program to prevent the spread of infections or communicable diseases. More specifically, SEH shall:
a. actively collect data with regard to infections and communicable diseases;
b. assess these data for trends;
c. initiate inquiries regarding problematic trends;
d. identify necessary corrective action;
e. monitor to ensure that appropriate remedies are achieved;
f. integrate this information into SEH's quality assurance review; and
g. ensure that nursing staff implement the infection control program.
11. Ensure sufficient nursing staff to provide nursing care and services.
IX. DOCUMENTATION
By 24 months from the Effective Date hereof, SEH shall develop and implement policies and/or protocols setting forth clear standards regarding the content and timeliness of progress notes, transfer notes, and discharge notes, including, but not limited to, an expectation that such records include meaningful, accurate assessments of the

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individual's progress relating to treatment plans and treatment goals.
X. RESTRAINTS, SECLUSION, AND EMERGENCY INVOLUNTARY PSYCHOTROPIC MEDICATIONS
By 12 months from the Effective Date hereof, SEH shall ensure that restraints, seclusion, and emergency involuntary psychotropic medications are used consistent with federal law and the Constitution of the United States.
A. By 12 months from the Effective Date hereof, SEH shall develop, revise, as appropriate, and implement policies and/or protocols regarding the use of seclusion, restraints, and emergency involuntary psychotropic medications that cover the following areas:
1. the range of restrictive alternatives available to staff and a clear definition of each and that the use of prone restraints, prone containment and/or prone transportation is expressly prohibited.
2. training in the management of the individual crisis cycle and the use of restrictive procedures; and
3. the use of side rails on beds, including a plan:
a. to minimize the use of side rails as restraints in a systematic and gradual way to ensure safety; and
b. to provide that individualized treatment plans address the use of side rails for those who need them, including identification of the medical symptoms that warrant the use of side rails and plans to address the underlying causes of the medical symptoms.
B. By 12 months from the Effective Date hereof, and absent exigent circumstances (i.e., when an individual

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poses an imminent risk of injury to self or others), SEH shall ensure that restraints and seclusion:
1. are used after a hierarchy of less restrictive measures has been considered and documented;
2. are not used in the absence of, or as an alternative to, active treatment, as punishment, or for the convenience of staff;
3. are not used as part of a behavioral intervention; and
4. are terminated as soon as the individual is no longer an imminent danger to self or others.
c. By 12 months from the Effective Date hereof, SEH shall
ensure that a physician's order for seclusion or restraint include:
1. the specific behaviors requiring the procedure;
2. the maximum duration of the order;
3. behavioral criteria for release which, if met, require the individual's release even if the maximum duration of the initiating order has not expired;
4. ensure that the individual's physician be promptly consulted regarding the restrictive intervention;
5. ensure that at least every 30 minutes, individuals in seclusion or restraint must be re­ informed of the behavioral criteria for their release from the restrictive intervention;
6. ensure that immediately following an individual being placed in seclusion or restraint, there is a debriefing of the incident with the treatment team within one business day;

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7. comply with 42 C.F.R. Part 483, Subpart G, including assessments by a physician or licensed medical professional of any individual placed ~n seclusion or restraints; and
8. ensure that any individual placed in seclusion or restraints is monitored by a staff person who has completed successfully competency-based training regarding implementation of seclusion and restraint policies and the use of less restrictive interventions.
D. By 12 months from the Effective Date hereof, SEH shall ensure the accuracy of data regarding the use of restraints, seclusion, or emergency involuntary psychotropic medications.
E. By 12 months from the Effective Date hereof, SEH shall develop, revise, as appropriate, and implement policies and/or protocols to require the review of, within three business days, individual treatment plans for any individuals placed in seclusion or restraints more than three times in any four-week period, and modification of treatment plans, as appropriate.
F. By 12 months from the Effective Date hereof, SEH shall develop and implement policies and/or protocols regarding the use of emergency involuntary psychotropic medication for psychiatric purposes, requiring that:
1. such medications are used on a time-limited, short-term basis and not as a substitute for adequate treatment of the underlying cause of the individual's distress;
2. a physician assess the individual within one hour of the administration of the emergency involuntary psychotropic medication; and
3. the individual's core treatment team conducts a review (within three business days) whenever three administrations of emergency involuntary psychotropic medication occur within a four-week

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period, determines whether to modify the individual's treatment plan, and ,implements the revised plan, as appropriate.
G. By 18 months from the Effective Date hereof, SEH shall ensure that all staff whose responsibilities include the implementation or assessment of seclusion, restraints, or emergency involuntary psychotropic medications successfully complete competency-based 'training regarding implementation of all such policies and the use of less restrictive interventions.
XI. PROTECTION FROM HARM
By 36 months from the Effective Date hereof, SEH shall provide the individuals it serves with ,a safe and humane environment, ensure that these individuals are protected from harm, and otherwise adhere to a commitment to not tolerate abuse or neglect of individuals, and require that staff investigate and report abuse or neglect of individuals in accordance with this Settlement Agreement and with District of Columbia statutes governing abuse and neglect. SEH shall not tolerate any failure to report abuse or neglect. Furthermore, before permitting a staff person to work directly with any individuals served by SEH, the Human Resources office or officials responsible for hiring shall investigate the criminal history and other relevant background factors of that staff person, whether full-time or part-time, temporary or permanent, or a person who volunteers on a regular basis. Facility staff shall directly supervise volunteers for whom an investigation has not been completed when they are working directly with individuals living at the facility.
XII. INCIDENT MANAGEMENT
By 24 months from the Effective Date hereof, SEH shall develop and implement, across all settings, an integrated incident management system. For purposes of this section, "incident" means death, serious injury, potentially lethal self harm, seclusion and restraint, abuse, neglect, and elopement.

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A. By 24 months from the Effective Date hereof, SEH shall develop, revise, as appropriate, and implement comprehensive, consistent incident management policies, procedures and practices. Such policies and/or protocols, procedures, and practices shall require:
1. identification of the categories and definitions of incidents to be reported and investigated, including seclusion and restraint and elopements;
2. immediate reporting by staff to supervisory personnel and SEH's chief executive officer (or that official's designee) of serious incidents; and the prompt reporting by staff of all other unusual incidents, using standardized reporting across all settings;
3. mechanisms to ensure that, when serious credible . allegations of abuse, neglect, and/or serious injury occur, staff take immediate and appropriate action to protect the individuals involved, including removing alleged perpetrators from direct contact with individuals pending the investigation's outcome;
4. adequate training for all staff on recognizing and reporting incidents;
5. notification of all staff when commencing employment and adequate training thereafter of their obligation to report incidents to SEH and District officials;
6. posting in each unit a brief and easily understood statement of how to report incidents;
7. procedures for referring incidents, as appropriate, to law enforcement; and
8. mechanisms to ensure that any staff person, resident, family member, or visitor who, in good faith, reports an allegation of abuse or neglect is not subject to retaliatory action by SEH

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and/or the District, including but not limited to reprimands, discipline, harassment, threats, or censure, except for appropriate counseling, reprimands, or discipline because of an employee's failure to report an incident in an appropriate or timely manner.
B. By 24 months from the Effective Date hereof, SEH shall develop, revise, as appropriate, and implement policies and/or protocols addressing the investigation of serious incidents, including elopements, suicides and suicide attempts, and abuse and neglect. Such policies and procedures shall:
1. require that such investigations be comprehensive, include consideration of staff's adherence to programmatic requirements, and be performed by independent investigators;
2. require all staff involved in conducting investigations to complete successfully competency-based training on technical and programm~tic investigation methodologies and documentation requirements necessary in mental health service settings;
3. include a mechanism which will monitor the performance of staff charged with investigative responsibilities and provide technical assistance and training whenever necessary to ensure the thorough, competent, and timely completion of investigations of serious incidents; and
4. include a reliable system to identify the need for, and monitor the implementation of, appropriate corrective and preventative actions addressing problems identified as s result of investigations.
c. By 24 months from the Effective Date hereof, whenever
remedial or programmatic action is necessary to correct a reported incident or prevent re-occurrence, SEH shall implement such action promptly and track and document such actions and the corresponding outcomes.

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D. By 24 months from the Effective Date hereof, records of the results of every investigation of abuse, neglect, and serious injury sh~ll be maintained in a manner that permits investigators and other appropriate personnel to easily access every investigation involving a particular staff member or resident.
E. By 24 months from the Effective Date hereof, SEH shall have a system to allow the tracking and trending of incidents and results of actions taken. Such a system shall:
1. Track trends by at least the following categories:
a. type of incident;
b. staff involved and staff present;
c. individuals involved and witnesses identified;
d. location of incident;
e. date and time of incident;
f. cause(s) of incident; and
g. actions taken.
2. Develop and implement thresholds for injury/event indicators, including seclusion and restraint, that will initiate review at both the unit/treatment team level and at the appropriate supervisory level, and that will be documented in the individual's medical record with explanations given for changing/not changing the individual's current treatment regimen.
3. Develop and implement policies and procedures on the close monitoring of individuals assessed to be at risk, including those at risk of suicide,

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that clearly delineate: who is responsible for such assessments, monitoring, and follow-up; the requisite obliga~ions to consult with other staff and/or arrange for a second opinion; and how each step in the process should be documented in the individual's medical record.
XIII. QUALITY IMPROVEMENT
By 36 months from the Effective Date hereof, SEH shall develop, revise, as appropriate, and implement quality improvement mechanisms that provide for effective monitoring, reporting, and corrective action, where indicated, to include compliance with this Settlement Agreement.
A. Track data, with sufficient particularity for actionable indicators and targets identified in this Agreement, to identify trends and outcomes being achieved.
B. Analyze data regularly and, whenever appropriate, require the development and implementation of corrective action plans to address problems identified through the quality improvement process. Such plans shall identify:
1. the action steps recommended to remedy and/or prevent the reoccurrence of problems;
2. the anticipated outcome of each step; and
3. the person(s) responsible and the time frame anticipated for each action step.
c. Provide that corrective action plans are implemented
and achieve the outcomes identified i~ the Agreement by:
1. disseminating corrective action plans to all persons responsible for their implementation;
2. monitoring and documenting the outcomes achieved; and

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3. modifying corrective action plans, as necessary.
D. Utilize, on an on~oing basis, appropriate performance improvement mechanisms to achieve SEH's quality/performance goals, including identified outcomes.
XIV. ENVIRONMENTAL CONDITIONS
By 36 months of the Effective Date hereof, SEH shall develop and implement a system to regularly review all units and areas of the hospital to which residents have access to identify any potential environmental safety hazards and to develop and implement a plan to remedy any identified issues, including the following:
A. By 36 months from the Effective Date hereof, SEH shall attempt to identify potential suicide hazards (e.g., seclusion rooms and bathrooms) and expediently correct them.
B. By 36 months from the Effective Date hereof, SEH shall develop and implement policies and procedures consistent with generally accepted professional standards of care to provide for appropriate screening for contraband.
c. By 24 months from the Effective Date hereof, SEH shall
provide sufficient professional and direct care staff to adequately supervise individuals, particularly on the outdoor smoking porches, prevent elopements, and otherwise provide individuals with a safe environment and adequately protect them from harm.
D. By 36 months from the Effective Date hereof, SEH shall ensure that the elevators are fully repaired. If possible, non-ambulatory individuals should be housed in first floor levels of living units. All elevators shall be inspected by the relevant local authorities~
E. By 12 months from the Effective Date hereof, SEH shall review and update the hospital fire safety and

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evacuation plan for all buildings and ensure that the plan is approved by the local fire authority.
F. By 36 months from the Effective Date hereof, SEH shall develop and implement procedures to timely identify, remove and/or repair environmentally hazardous and unsanitary conditions in all living units and kitchen areas.
XV. BENCHMARKS
By December 31, 2007, the District agrees to make substantial improvement in the following four (4) areas of this Settlement Agreement listed below. Every four months beginning with the Effective Date of this Agreement, the District shall submit to the Onited States a Corrective Action Plan ("CAP") to achieve substantial improvement. The CAP shall list the particular provision of the Agreement being addressed, the action steps to be taken to adequately comply with the provision, the timeline to achieve the action steps, the person(s) responsible for implementing the action steps, the status of the action steps along with quality assurance mechanisms to evaluate and monitor such status, and the documents that demonstrate progress and/or compliance with the particular provision. If the District fails to comply with the below benchmarks, the United States may assert all its remedies available under law.
A. Integrated Treatment Planning and its provisions under Section V of the Agreement.
B. Mental Health Assessments and its provisions under Section VI of the Agreement.
C. Incident Management System and its provisions under Section XII of the Agreement.
D. Restraints, Seclusion, and Emergency Involuntary Psychotropic Medications and its provisions under Section X of the Agreement.

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XVI. TERMS AND CONDITIONS
A. The District represents that it will periodically refine and revise the policies and/or protocols outlined in this Agreement to ensure compliance with the intent of this Agreement. The District shall notify the 'United States regarding any substantive revisions to a policy and or protocol outlined under this Agreement. Upon request by the United States, the District shall provide the United States with copies and an opportunity to provide substantive comment upon any policies and/or protocols revised pursuant to this Agreement. If it wishes to provide substantive comments, the United States will provide such comments or request for additional time within 45 days of receipt of the revisions.
B. The District represents that it has educated, or will educate, all employees at SEH with respect to the policies and/or protocols outlined in this Agreement.
c. The District shall maintain records to document its compliance with all terms and conditions of this Agreement. The District shall also maintain any and all records required by, or developed pursuant to, this Agreement.
D. Until this matter is dismissed, the United States shall have unrestricted access to, and shall, upon request, receive copies of any documents, records, and information relating to the implementation of this Agreement. SEH shall provide any requested documents, records, and information to the United States as soon as possible, but no later than within 30 business days of the request. The United States shall have reasonable access to all of SEH's buildings and facilities, including any newly constructed, renovated and/or designated buildings and facilities; staff and residents, including private interviews with staff, and, where clinically appropriate, private interviews with residents; and resident records, documentation, and information relating to the issues addressed in this Agreement. SEH shall make all employees available so that they may choose to cooperate fully

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with the United States. The United States agrees to provide SEH with reasonable notice of any visit or inspection, although the United States and SEH agree that no notice shall be required in an emergency situation where the life, immediate health, or immediate safety of individual(s) is at issue. Nothing in this Agreement shall abridge ·the whistleblower rights of District employees or contractors under law.
E. The District shall notify the DOJ immediately upon the death of any SEH's patient (excluding those patients on conditional release) and/or any situation resulting in such patient being placed in imminent and/or immediate jeopardy that has caused or may cause severe injury to such SEH patient. The District shall forward to DOJ copies of any completed incident reports related to deaths, autopsies and/or death summaries of residents, as well as all final reports of investigations of those incidents described in this subsection.
F. If SEH closes and individuals are moved to another facility or facilities, the United States reserves the right to evaluate the appropriateness of such placements. If the District contracts for any of the services to be delivered at SEH which are covered under this Agreement, the Agreement shall be fully applicable to, and binding upon, any contracted services.
G. If the United States maintains that the District has failed to carry out any requirement of this Agreement, the United States shall notify the District of any instance(s) in which it maintains that the District has failed to carry out the requirements of this Agreement.
H. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of a resident(s) at SEH, the District shall take substantial steps to correct the claim of non-compliance within 90 days of any notice of non-compliance. During this period, the United

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States and the District shall coordinate and discuss areas of disagreement and attem2t to resolve outstanding differences. If the United States and the District fail to reach an agreement, the United States is not limited in any fashion in pursuing its law enforcement obligations with 30 days notice, including any adverse litigation against the District and/or seeking appropriate enforcement of any provision of this Agreement.
I. The District shall submit to the United States a status report every 6 months that discusses the current status of each provision of the Settlement Agreement along with a projection of the completion date for each provision and steps needed to be taken achieve such completion date.
J. If, at any time, any party to this Agreement desires to modify it for any reason, that party will notify the other party in writing of the proposed modification and the reasons therefor. No modification will occur unless there is a written agreement between the United States and the District. The mutually agreed upon modification must be approved by the Court.
K. The Court will have continuing jurisdiction over enforcement of this Agreement for a period of five years from the effective date hereof. If the District is able to reach sustained compliance with certain Sections of the Agreement for a period of two years, the United States will no longer monitor or require evaluation of such Sections. If the parties agree that the District is in sustained compliance with each of the provisions of this Agreement earlier than five years from the Effective Date of the Agreement, and has maintained sustained compliance for at least one year, then the parties may file a joint motion to dismiss with the Court. Noncompliance with mere technicalities, or temporary f?ilure to comply during a period of otherwise sustained compliance" shall not constitute failure to maintain sustained compliance. At the same time, temporary compliance during a period

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of otherwise sustained noncompliance, shall not constitute sustained compliance .

~ O~---- SO ORDERED this

./110
day

, 2007.

United States Dis~ict Court

r

Case 1:07-cv-00889-TFH Document 5-1 Filed 06/25/07 Page 42 of 44

Dated this

42
AGREED TO BY THE UNDERSIGNED:
day of __f1_~-t-_ _' 2007.
FOR THE UNITED STATES:

Assistant A orney General Civil Rights Division

~~ '/. ~'-Jcr'

SHANETTA Y. ICUTLAR

J

Chief

Special Litigation Section

Deputy Chief Special Litigation Section

Senior Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530
(202) 514-6251
(2 02 ) 5 14 - 6 9 0 3 (fax )

Case 1:07-cv-00889-TFH Document 5-1 Filed 06/25/07 Page 43 of 44
43
FOR THE DISTRICT:
LINDA SINGER Attorney General For the District of Columbia
GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division
~ a . /:fv ... s (~Jcro
;ELLEN A. EFROS [250746J Chief, Equity I Section Office of the Attorney General 441 4th Street, N.W. 6th Floor Washington, D.C. 20001 (202) 442-9886

Case 1:07-cv-00889-TFH Document 5-1 Filed 06/25/07 Page 44 of 44
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served by First-Class mail, postage prepaid to: ELLEN A. EFROS Chief, Equity 1 Section Office of the Attorney General 441 4th Street, N.W. 6th Floor Washington, D.C. 20001
II on this t\- day of May, 2007.
mr:IE WEINSTEIN
A$ stant United States Attorney 5t Fourth Street, N.W., Room E4820 Washington, D.C. 20001 (202) 514-7133

 
 Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE DISTRICT OF COLUMBIA,

)

Honorable Vincent C. Gray,

)

Mayor, District of Columbia,

)

in his official capacity only;

)

DEPARTMENT OF MENTAL HEALTH, )

Stephen T. Baron, Director,

)

Department of Mental Health,

)

in his official capacity only;

)

and SAINT ELIZABETHS HOSPITAL, )

Patrick J. Canavan,

)

Chief Executive Officer,

)

Saint Elizabcths Hospital,

)

in his official capacity only

)

)

Defendants.

)

)

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

eiv. No. 07-889 (TFH)
FILED
oel2 :1) :2D11
Clerk,.U.S.llisut1l~~
Courts forthe ai$tt4'4tq~

MODIFIED SETTLEMENT AGREEMENT
A. This Modified Settlement Agreement (the "Agreement" or "Modified Agreement" is entered into between the United States and the District of Columbia, the District of Columbia Department of Mental Health, and St. Elizabeths Hospital (collectively, "the District").
B. This Agreement modifies the original Settlement Agreement ("Original Agreement"), that the United States Department of Justice ("United States") and
the District entered to resolve the United States' investigation of st. Elizabeths
Hospital ("SEH" or "Hospital") pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. This Court entered the Original Agreement on June 25,2007.

Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 2 of 7
2
C. Since the United States and the District entered into the Original Agreement, the District has made substantial progress in rmnedying the problems the United States identified in its May 23, 2006, letter to the District summarizing its investigative findings. The parties have worked collaboratively to implement the Original Agreement, and agree that it is in their mutual interest and the interests ofthe individuals in SEH's care to continue doing so.
D. The parties thus agree to modify the Original Agreement as set forth in this Agreement.
E. The Effective Date of this Agreement shall be the date that the United States District Court for the District of Columbia enters an order adopting this Agreement as a modification to the parties' Original Agreement.
F. By 12 months from the Effective Date of the Modified Agreement, the District shall obtain substantial compliance with the following provisions contained in the Original Agreement:
1. V.A.2.b 2. V.A.2.c 3. V.A.2.e 4. V.B.5 5. V.B.7 6. V.B.9 7. V.C.2 8. V.C.6 9. V.C.? 10. V.D.l 11. V.D.2 12. V.D.3 13. VDA 14. V.D.5 15. V.E.1 16. V.E.3 17. VLA.1 18. VLA.2 19. VI.A.6.a 20. VLA.6.d 21. V1.B.1 22. V1.B.2.e 23. \11.B.5 24. VLD

Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 3 of 7
3
25. VILA 26. VILAl 27. VILA.3 28. VII.A4 29. VIl.C 30. VII.C.1 31. VILD 32. VILE 33. VIILA.l.d 34. VIII.A.1.e 35. VIII.A.2.b.iv 36. VIILB.l.a 37. VIII.B.1.e 38. VIIl.B.l.f 39. VIII.B.2 40. VIII.B.3 41. VIll.BA.e 42. VIII.D.2 43. VIIl.D.3 44. VIII.DA 45. VIILD.6 46. VIILD.8 47. VIILD.9.a 48. VllLD.9.b 49. VIILD.9.c 50. VIII.D.lI 51. XA.1 52. X.A.2 53. XB.l 54.XB.2 55. XC.6 56. XC.7 57. XC.8 58. XE 59. XF.l 60. XF.2 61. XF.3 62. XO 63. XI 64. XIl.A 65. XILA2 66. XII.A.3 67. XII.B

Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 4 of 7
4
68. XII.B.4 69. XII.C 70. XII.E 71. XII.E.2 72. XIl.E.3 73. XIILB 74. XIlLB.l 75. XIII.B.2 76. XIILB.3 77. XIII.C 78. XlILC.l 79. XIILC.2 80. XIlLC.3 81. XIILD
G. The following text will replace the language contained in provision VIII.D.l of the Original Agreement:
1. The Hospital will develop and implement clinical audits and oversight to ensure changes in physical status are identified and treated.
2. The District shall obtain substantial compliance with modified provision VIII.D.l within 12 months of the Effective Date of this Agreement.
H. The provisions listed in Section F and G above shall collectively be referred to as the Retained Provisions.
1. All parties stipulate to the dismissal ofthe remaining provisions contained in Palts V-XIV ofthe Original Agreement.
J. The United States District Court for the District of Columbia shall have continuing jurisdiction over enforcement of this Agreement and the Original Agreement as modified by this Agreement until the District reaches sustained COmpIiallCe with the Retained Provisions for a period of one year. If the District is able to reach sustained compliance with certain provisions of the Agreement for a period ofone year, the United States will no longer monitor or require evaluation of such provisions. If the parties agree that theDistrict is in sustained compliance with each of the Retained Provisions, and has maintained sustained compliance for at least one year, the parties may file a joint motion to dismiss with the Court. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, shall not constitute failure to maintain sustained compliance. At the same time, temporary compliance during a period ofotherwise sustained noncompliance, shall not

Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 5 of 7

5

constitute sustained compliance. TIlis paragraph modifies provision XVLK of the Original Agreement.

& ~~:~fH1. SO ORDERED this

day of

United States District Court

Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 6 of 7

Dated this /JIA

6 AGREED TO BY THE UNDERSIGNED:
dayof c1s1~ ,2011.

FOR THE UNITED STATES:

THOMAS PEREZ Assistant Attorney General Civil Rights Division
EVE HILL Senior Counselor Civil Rights Division

JU~:1tR!s'! Jf
Deputy Chief Special Litigation Section

Case 1:07-cv-00889-TFH Document 9 Filed 10/26/11 Page 7 of 7
7
Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530 Tel: (202) 514-6255 Fa.x: (202) 514-0212 FOR THE DISTRICT:
IRVIN B. NATHAN Attorney General for the District of Columbia
Deputy Attorney General Public Interest Division

 
 Case 1:07-cv-00889-TFH Document 11 Filed 09/19/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE DISTRICT OF COLUMBIA,

)

Honorable Vincent C. Gray,

)

Mayor, District of Columbia,

)

in his official capacity only;

)

DEPARTMENT OF MENTAL HEALTH, )

Stephen T. Baron, Director,

)

Department of Mental Health,

)

in his official capacity only;

)

and SAINT ELIZABETHS HOSPITAL, )

Patrick J. Canavan,

)

Chief Executive Officer,

)

Saint Elizabeths Hospital,

)

in his official capacity only,

)

)

Defendants.

)

)

Civ. No. 07-889 (TFH)

ORDER OF FINAL DISMISSAL Having considered the Parties' Joint Motion For Order of Final Dismissal, it is hereby ordered that the Modified Settlement Agreement and its associated Order are terminated and this case is dismissed with prejudice. Further, the Court takes judicial notice of the Parties' NOTICE OF CONTINUING MONITORING BETWEEN SAINT ELIZABETHS HOSPITAL AND UNIVERSITY LEGAL SERVICES.

Case 1:07-cv-00889-TFH Document 11 Filed 09/19/14 Page 2 of 2

HONORABLE THOMA UNITED STATES DIS

OGAN COURT

-2-

 
 U.S. Department of Justice
Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, NW Washington, DC 20530
May 23, 2006

The Honorable Anthony A. Williams
 Mayor
 District of Columbia
 1350 Pennsylvania Avenue, N.W.
 Washington, DC 20005

Re: CRIPA Investigation of St. Elizabeths Hospital,
 Washington, D.C. 

Dear Mayor Williams:

I am writing to report the findings of the Civil Rights
 Division’s investigation of the conditions and practices at St.
 Elizabeths Hospital (“St. Es”), in Washington, D.C. On March 16,
 2005, we notified you of our intent to conduct an investigation
 of St. Es pursuant to the Civil Rights of Institutionalized
 Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA gives the DOJ
 authority to seek remedies for any pattern or practice of conduct
 that violates the constitutional or federal statutory rights of
 persons with mental illness who are served in public
 institutions. 

As part of our investigation, in June 2005, we conducted an
 on-site review of care and treatment at St. Es with expert
 consultants in the areas of psychiatry, psychiatric nursing,
 psychology, environmental health and safety, and protection from
 harm. Before, during, and after our site visit, we reviewed a
 wide variety of documents, including policies and procedures, and
 medical and other records relating to the care and treatment of
 dozens of St. Es patients. During our visit, we also interviewed
 administrators, staff, and patients, and examined the physical
 living conditions at the facility. At the end of our tour,
 consistent with our pledge of transparency and to provide
 technical assistance where appropriate regarding our
 investigatory findings, we conveyed our preliminary findings to
 counsel and facility and District officials.


-2­

We wish to express our appreciation to the staff of St. Es
 and to District officials for their assistance and cooperation
 during our investigation. We hope to continue to work with St.
 Es and the District of Columbia in the same cooperative manner in
 addressing the problems that we found. Further, we wish to
 particularly thank those individual St. Es staff members, both
 new and longstanding, who make daily efforts to provide
 appropriate care and treatment and improve the lives of patients
 at the hospital. Those efforts were noted and appreciated by us
 and our expert consultants.

Consistent with our statutory obligations under CRIPA, I now
 write to advise you formally of the findings of our
 investigation, the facts supporting them, and the minimal
 remedial steps that are necessary to remedy the deficiencies set
 forth below. 42 U.S.C. § 1997b(a). Specifically, we have
 concluded that numerous conditions and practices at St. Es
 violate the constitutional and federal statutory rights of its
 residents. In particular, we find that St. Es fails to provide
 its patients adequate: 1) protection from harm; 2) psychiatric
 and psychological care and treatment; 3) medical and nursing care
 and treatment; and 4) discharge planning and placement in the
 most integrated setting. See Youngberg v. Romeo, 457 U.S. 307
 (1982); Title XIX of the Social Security Act, 42 U.S.C. § 1396;
 42 C.F.R. Part 483, Subpart I (Medicaid Program Provisions);
 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 et
 seq.; 28 C.F.R. § 35.130(d); see also Olmstead v. L.C., 527 U.S.
 581 (1999). 

I. BACKGROUND

St. Elizabeths was initially established in 1855 as the
 Government Hospital for the Insane. In 1916, Congress officially
 changed the hospital's name to St. Elizabeths. By the 1940s, the
 hospital complex covered 300 acres, and housed 7,000 patients.
 In 1987, the federal government transferred the hospital to the
 District of Columbia, but retained ownership of the western
 campus.1 St. Es is currently operated on approximately 197 acres
 of land located in southeast Washington D.C., specializing in
 inpatient care for people with acute, long-term mental health
 needs and forensic needs. St. Es patients and staff occupy
 approximately 15 buildings. Forensic patients are housed in the

1
 The federal government transferred St. Elizabeths to
 the District of Columbia, pursuant to Public Law 98-621. St. Es
 does not house any patients nor provide any services on the
 western campus.


-3­

John Howard Pavilion (“JHP”). Although St. Es is a 529-bed
 hospital, its census has declined over the years, and during our
 visit in June 2005, the census was 221 for forensic patients and
 229 for civil patients, for a total of 450 patients. 

II. FINDINGS

A. PROTECTION FROM HARM

Patients at St. Es have a right to live in reasonable safety
 and to receive adequate health care, along with treatment to
 ensure their safety and freedom from unreasonable restraint,
 prevent regression, and facilitate their ability to exercise
 their liberty interests. See Youngberg v. Romeo, 457 U.S. 307
 (1982); Brogsdale v. Barry, 926 F.2d 1184, 1190 (D.C. Cir. 1991)
 (citing Youngberg for proposition that pretrial detainees have a
 constitutional entitlement to a reasonably safe environment);
 Evans v. Washington, 459 F. Supp. 483, 488-90 (D.D.C. 1978)
 (constitutional rights to care and treatment and to be free from
 harm required institution to develop and implement certain
 programs and refrain from certain actions including prohibiting
 physical or psychological abuse, neglecting or mistreating
 residents, and requiring incidents of alleged abuse to be
 reported promptly and investigated). In order to protect
 patients from harm, the District has a duty to adequately
 supervise St. Es patients known to be suicidal. See, e.g.,
 United States v. Hinckley, 672 F.2d 115, 132 n.112 (D.C. Cir.
 1982) (noting obligation of jailer to control environment to
 protect suicidal prisoner from harming himself); Dinnerstein v.
 United States, 486 F.2d 34 (2d Cir. 1973) (veterans hospital held
 liable for not adequately supervising patient with history of
 known suicidal tendencies).

In our judgment, St. Es fails to provide its patients with a
 reasonably safe living environment. The facility too often
 subjects its patients to harm or risk of harm. St. Es patients
 are subjected to assaults and harm from elopements2
 and suicides. 
 St. Es patients are subjected to undue seclusion and restraints.
 Resolution of these concerns is hampered by an inadequate risk
 management and quality assurance system, and inadequate
 investigations of abuse and neglect. Finally, St. Es patients
 suffer harm from an inadequate physical plant.

2
 Elopements are incidents where patients leave St. Es’
 campus without authorization.


-4­

1. Assaults, Elopements, and Suicide Risks 

Based on the four month period between January and April
 2005, St. Es’ documents reveal that there were at least 138
 patient-to-patient altercations and 34 patient-to-staff
 altercations. During a number of the patient-to-patient
 assaults, there appears to have been little or no supervision.
 In several incidents, patients were subjected to life-threatening
 harm. This is particularly troubling given the history of
 assaults at St. Es, some of which have resulted in deaths, in the
 recent past. For example, on April 21, 2004, a 60-year-old
 patient beat a 76-year-old patient to death. The medical
 examiner’s office ruled the death a homicide and identified
 blunt-impact trauma to the head and neck as a contributing
 factor. Similarly, on April 4, 2004, a patient-on-patient
 altercation resulted in the victim sustaining a cracked skull and
 broken neck and legs, and he was transported to a hospital in a
 comatose state. This victim remained in a coma for over a year
 and died on March 12, 2005. The alleged attacker has been
 charged with homicide.

More recently, on February 7, 2005, A.F.,3
 who was noted by
 staff to be acting “quite psychotic,” was involved in an
 altercation with another patient, D.I., in the bedroom area of
 the unit. D.I. apparently kicked A.F. in the head until he was
 unconscious. A.F. was taken to the emergency room. In another
 example, on January 30, 2005, K.L. was assaulted by another
 patient in the day room, where she was grabbed by the hair and
 thrown to the ground. She was taken to the emergency room and
 received stitches for a laceration to her forehead.

In addition, we identified a pattern of patient-on-patient
 assaults on the wards’ smoking porches, where no staff were
 present. For example, on January 30, 2005, Y.I. assaulted T.P.
 on the smoking porch, kicking her in the head and throwing a
 chair at her. Staff responded after hearing T.P. screaming.
 There were at least seven additional patient-on-patient assaults
 throughout this four month period on the smoking porches where
 patients are apparently allowed without supervision.

3
 To protect patients’ privacy, we identify patients by
 initials other than their own. We will separately transmit to
 the District a schedule that cross references the initials with
 patient names.


-5­

Over this same four-month period, there were 86 elopements.
 A substantial number of the elopements occurred when patients
 were supposed to be in the dining room or going to and from
 treatment. For example, H.G. eloped eight times over the course
 of three months, and five of those elopements were from the
 dining room. Additionally, six other patients eloped from the
 dining room over this four-month period. Despite these patterns,
 no corrective procedures have been implemented to address this
 high rate of elopements or to prevent elopements from the same
 common areas.

Patients at St. Es routinely leave the grounds of the
 hospital without authorization. Many of these patients simply
 walked off the hospital grounds, scaled the exterior fence, or
 did not return from community-based programs. In fact, we were
 told that the private security staff at St. Es are prohibited
 from requiring identification of, or detaining, patients who
 elope or attempt to flee the hospital. 

These security deficiencies fail to protect St. Es patients
 from harm. For example, on January 15, 2005, F.I. was given one
 hour grounds privileges4
 at 4:00 p.m. He returned over four
 hours later at 8:15 p.m. with a crack cocaine pipe. On 
 January 7, 2005, L.M. was accidentally let out for ground
 privileges and he has never returned.

In another example, on April 28, 2005, a staff member at the
 forensic unit reported finding a large yellow rope thrown over
 the exterior wall, apparently from the exterior side of the wall.
 Sheets were also found tied together in a trash can. However,
 there did not appear to be any further investigation or follow-up
 regarding this matter. By failing to implement accountability
 and control measures for the significant rate of elopements of
 patients with mental illness, the hospital is placing its
 patients, as well as the surrounding community, at risk of harm.

Finally, patients at risk for suicide receive inadequate
 care and supervision. St. Es does not have a clear policy for
 suicide assessment, evaluation, and follow-up. There are cases 
 when patients’ risks for suicides are not even assessed. In
 fact, in several nursing assessments, patients with suicidal
 ideations or tendencies were merely identified as having unsafe
 behavior towards self/others or self-care deficits towards

4
 Patients with grounds privileges are allowed to leave
 their units and given access to St. Es’ grounds, typically for an
 hour, but are not authorized to leave the St. Es campus.


-6­

self/others. This systemic failure to directly and adequately
 address suicidal risks eliminates prompt and effective
 interventions to monitor patients and prevent suicides and
 suicide attempts. For example, T.N.’s initial assessment did not
 include an assessment of suicidality because he was
 “disorganized.” There are no documented attempts to follow up
 with this patient at a later date to complete his psychiatric
 assessment for dangerousness to himself.

When patients are assessed, patients who exhibit suicidal
 tendencies are not properly monitored and treated. For example,
 on February 22, 2005, P.O. was found by another patient in the
 bathroom where she was sitting on the toilet with a plastic bag
 around her head and a string around her neck. In response to her
 suicide attempt, the patient was inappropriately placed in four-
 point restraints to the bed and one-to-one observation for 24
 hours. The standard of care is to place such a patient on
 special observation until a proper assessment and evaluation of
 the lethality of her suicidal ideation can be conducted. Four
 days later, P.O. re-attempted suicide, when, again, she was found
 in the bathroom, this time attempting to cut her wrists with a
 piece of glass. She was instructed to leave the bathroom and
 counseled, again an egregious departure from the standard of
 care. Moreover, there was no indication that St. Es attempted to
 determine where she obtained the plastic bag, string, or piece of
 glass. 

In addition to the bathrooms serving as a common location
 for patients to attempt suicide, they contain serious suicide
 risks. For example, many of the bathrooms have hand-held
 showers, protruding knobs and open grab bars, which are serious
 suicide hazards.

2. Seclusion, Restraints, and Pro Re Nata or “As
 Needed Medications” 

The right to be free from undue bodily restraint is the
 core of the liberty protected by the Due Process Clause from
 arbitrary governmental action. Youngberg, 457 U.S. at 316.
 Consistent with generally accepted professional practice,
 seclusion and restraints may only be used when a patient is a
 danger to himself or to others. See Youngberg, 457 U.S. at 324
 (“[The State] may not restrain residents except when and to the
 extent professional judgment deems this necessary to assure such
 safety to provide needed training.”); United States v. Weston,
 255 F.3d 873, 876 (D.C. Cir. 2001) (recognizing balance between 


-7­

significant liberty interest to be free from unwanted chemical
 restraints and judgment of medical professionals); Thomas S. v.
 Flaherty, 699 F. Supp. 1178, 1189 (W.D.N.C. 1988), aff’d, 902
 F.2d 250 (4th Cir. 1990) (“It is a substantial departure from
 professional standards to rely routinely on seclusion and
 restraint rather than systematic behavior techniques such as
 social reinforcement to control aggressive behavior.”); Williams
 v. Wasserman, 164 F. Supp. 2d 591, 619-20 (D. Md. 2001) (the
 State may restrain patients via mechanical restraints, chemical
 restraints, or seclusion only when professional judgment deems
 such restraints necessary to ensure resident safety or to provide
 needed treatment). Similar protections are accorded by federal
 law. See, e.g., Title XIX of the Social Security Act,
 42 U.S.C. § 1395hh, and implementing regulations, 42 C.F.R. Parts
 482-483 (Medicaid and Medicare Program Provisions); 42 C.F.R.
 § 482.13(f)(3) (“The use of a restraint or seclusion must be . .
 . [s]elected only when less restrictive measures have been found
 to be ineffective to protect the patient or others from harm;
 [and] . . . [i]n accordance with the order of a physician . . .
 .”); 42 C.F.R. § 482.13(f)(1) (“The patient has the right to be
 free from seclusion and restraints, of any form, imposed as a
 means of coercion, discipline, convenience, or retaliation by
 staff.”). 

Generally accepted professional standards dictate that
 seclusion and restraints: a) will be used only when persons pose
 an immediate safety threat to themselves or others and, absent
 exigent circumstances, after a hierarchy of less restrictive
 measures has been considered and/or exhausted; b) will not be
 used in the absence of, or as an alternative to, active
 treatment, as punishment, or for the convenience of staff;
 c) will not be used as a behavioral intervention; and d) will be
 terminated as soon as the person is no longer a danger to himself
 or others. In addition, generally accepted professional
 standards instruct that pro re nata (“PRN” or “as needed”)
 psychotropic medications should be used only as a short-term
 measure to relieve a patient in acute distress, not as means to
 escape mild, possibly healthy, discomfort or as a repeatedly
 deployed substitute for treatment, or used as punishment.

Although the reported incidents of St. Es’ use of seclusion
 and restraints appear to have decreased in recent years, St. Es’
 uses of seclusion, restraints, and PRN medications substantially
 depart from generally accepted professional standards. 


-8­

Of great concern is the pattern of seclusion and restraint
 usage in the forensic unit. From January through May 2005,
 patients on the forensic units were restrained or secluded for
 1,387 hours on the weekends (Friday - Sunday) compared to 63.62
 hours during the week (Monday - Thursday). This significant
 difference between the number of seclusion and restraint hours
 during the weekends and the weekdays is clinically inexplicable
 and most likely indicates an over-reliance on the usage of
 seclusion and restraints to compensate for shortage of staff and
 personnel on weekends. 

Seclusion and restraint reporting appears to be inconsistent
 and/or inaccurate. For example, we identified a patient who wore
 a protective helmet and had been continuously placed on one-to­
 one supervision during the six months prior to our visit. Unit
 staff stated that his bed was wheeled into the day room at night
 for observation but denied that any seclusion or restraints were
 used. However, his bed was fitted with wrist restraints and a
 urinal. Unit staff claimed that the wrist restraints had not
 been removed because the key was lost. In our experience, the
 existence of the wrist restraints in combination with a urinal
 strongly suggests that this patient was restrained to the bed at
 night, notwithstanding the absence of any reporting or
 documentation. 

According to generally accepted professional standards, bed
 side rails are physical restraints. Patients, particularly those
 who have problems with memory, sleeping, incontinence, or who get
 out of bed and walk unsafely without assistance, can become
 entangled in side rails when attempting to exit beds, and can be
 severely injured or killed as a result. Where side rails are
 used, they must be part of a patient’s treatment plan that
 reflects that they are the least restrictive intervention then
 available and that alternative interventions are being explored
 to obviate their need. St. Es routinely uses bed side rails as a
 substitute for care and at the risk of patients’ safety. For
 example, U.N.’s treatment plan states that he has a “High Risk
 for Falls,” and the recommended intervention was to order side
 rails for his bed to address his restlessness and agitation in
 bed. Using side rails places this patient at greater risk of
 injuring himself because the rails will likely cause more
 agitation and cause him to attempt to climb over the side rails,
 thereby posing greater risks of strangulation, falls, bodily
 injury or death. In another example, R.E. attempted to get out
 of bed when both side rails were up. He fell and was found
 kneeling on the floor, bleeding from his forehead.


-9­

The seclusion rooms themselves are unsafe. Several
 seclusion rooms contained metal beds with exposed and pointed
 corners and screws. Furthermore, several seclusion rooms did not
 have necessary mirrors for staff to observe the patient at all
 corners of the room. These rooms present clear dangers to
 patients and are not acceptable. Patients in seclusion should be
 under constant observation in order to prevent them from injuring
 themselves. Seclusion rooms should be designed with mirrors in
 the corners below the ceilings to allow complete visibility and
 there should be no exposed corners, edges, or screws on which
 patients can accidentally or purposefully harm themselves.

When seclusion, restraints and/or PRN medications are
 frequently used with a patient, generally accepted professional
 standards require the treatment team to reassess interventions
 and, as necessary, modify the patient’s treatment plan. Frequent
 use of seclusion, restraints and/or PRN medications is an
 indicator that a patient’s diagnosis is erroneous and/or that the
 treatment plan is inappropriate, and may also indicate that staff
 are using them to replace active treatment, as punishment, or for
 the convenience of staff. 

St. Es patients are routinely subjected to repeated uses of
 seclusion, restraints and/or PRN medication. Treatment plans are
 not adequately reviewed or revised to address these problematic
 patient outcomes. For example, I.M. was admitted to St. Es’
 forensic unit on April 11, 2005. In addition to routine
 medications, she received 57 PRN medications between April 12 and
 July 22, 2005. During this period, there was no evaluation of
 this patient’s medication regimen or modification of her
 treatment plan. In another example, Y.I. received repeated PRN
 medications as well as other restrictions between April and May
 2005 for repeated episodes of acting out and verbal threats,
 including punching a psychiatrist. Nonetheless, he was given
 ground privileges during this same period and he eloped. At some
 point after his return, he was transferred at least once to
 another unit where his behavior remained unmanageable. His
 treatment plan was never reviewed or modified to address his
 repeated episodes. Similarly, A.O. is a patient diagnosed with
 psychotic disorder. She has had repeated episodes of psychotic
 symptoms, agitation and assaultiveness toward her peers. Over
 the course of four and a half months, A.O. assaulted or attempted
 to assault other patients on three different occasions. Although
 PRN medication was ordered immediately after two of the assaults,
 her treatment plan was never reviewed and her regular medication
 management was never addressed. 


-10­

Documentation surrounding the use of seclusion, restraints,
 and/or PRN medication, including the circumstances leading up to
 their use, fail to show that staff first attempted less
 restrictive interventions, that patients were an immediate danger
 to themselves or others, or the need for their continuation. In 
 contravention of generally accepted professional standards,
 St. Es fails to release patients from seclusion and restraint
 when they are no longer a danger to themselves or others.

Patients receiving PRNs are routinely ordered PRNs for
 “agitation,” which, contrary to generally accepted practices,
 fails to specify the exact nature of behaviors that require the
 administration of medication PRN. In addition, the circumstances
 necessitating or preceding the order for and administration of
 PRNs and patients’ responses to PRN medications are not
 documented in the patients’ charts. For example, T.N. received a
 PRN medication in May 2005. However, the treating psychiatrist
 was unaware of the fact that a PRN medication had been
 administered, as evidenced by the lack of any reference to the
 PRN medication in his progress notes. Nowhere in the chart was
 there any documentation of the circumstances necessitating the
 PRN order, or of the patient’s response to the PRN.

In addition, although St. Es has a policy governing the use
 of PRN medication, it does not follow the policy. According to
 the policy, PRN orders are to be renewed, if at all, every 72
 hours. Not only are physicians not reviewing and renewing the
 PRN orders every 72 hours, the nursing staff are administering
 PRN medications contrary to policy and based on outdated orders.
 For example, on June 17, 2005, a patient was given PRN
 medications based on a PRN order from June 8, 2005. Moreover,
 oftentimes, PRN orders are not dated. For example, U.Y. had a
 PRN order for three different medications but the physician did
 not date the order. When the order was transcribed by the RN on
 June 8, 2005, the RN arbitrarily listed the start date as June 9
 and the stop date as July 13 for the PRN medications.
 Accordingly, PRNs continue to be used and administered for
 several days, and oftentimes weeks, without any review or
 assessment.

3. Risk Management 

In order to ensure that patients are provided a reasonably
 safe environment, generally accepted professional standards
 mandate that facilities such as St. Es maintain an effective
 incident management system, including mechanisms for reporting;
 investigating; tracking and trending; and identifying and
 monitoring implementation of appropriate corrective and


-11­

preventative action. St. Es’ incident management system
 substantially departs from these generally accepted standards in
 several ways and exposes its patients to actual and potential
 harm. 

Although it is St. Es’ policy for reports to be completed
 after every significant incident, there is rarely any follow-up
 or analysis. There is no systemic review of patterns or trends
 of incidents that expose patients to repeated harm and exposure
 to harm. For example, there were three separate unusual incident
 reports (“UIRs”) for L.P. over the course of two weeks in
 February 2005, stating that he was “observed lying on the floor,”
 “observed with dried blood above his right eyebrow,” and
 “observed on the floor w/ (what may be seizure-like activity).”
 There is no indication that the cause of L.P.’s injuries over the
 course of two weeks were ever analyzed, let alone addressed
 through a corrective or preventative action plan. Similarly,
 over the course of one month, P.I. had three seizures. After a
 serious seizure on January 18, 2005, he was sent to the emergency
 room. On February 14, he was “found on the floor” in his bedroom
 and “appeared to be having a seizure” and on February 22, he was
 “noted getting up from the floor” and that he didn’t recall what
 had happened. All of these reports fail to address this
 patient’s risk of seizures and there is no indication that St. Es
 took any actions to address the significant risks to this
 patient’s repeated seizures and resulting falls.

The incident reports also do not consistently provide
 accurate data for purposes of risk management. For example, even
 the most rudimentary risk management system should track the
 circumstances that caused a hospital patient to require care in
 an emergency room. In analyzing emergency room visits, a
 properly functioning risk management system would work to
 minimize the risk of need for emergency room care in the future.
 In the above example regarding P.I., there were two reports
 completed for his seizure on January 18. Neither report
 indicates the appropriate incident code for emergency room,
 although he was transported to the emergency room for a serious
 medical condition. St. Es’ failure to properly report and record
 incidents makes it impossible to identify problematic trends in
 patient incidents and to take appropriate and timely action to
 address such trends and patterns. This failure exposes St. Es
 patients to ongoing risks of harm. 

Another disturbing example of the lack of follow-up and
 corrective actions in response to St. Es’ reports involves N.E.
 and S.P. S.P. reported to St. Es staff that she engaged in sex
 with N.E. on two different occasions on the smoking porch of


-12­

their unit. The report indicates that staff confronted N.E.
 about these allegations and he confirmed them. The report also
 stated that “[N.E.] is aware [that] he is high risk for infection
 related to blood born [sic] pathogens so he used condoms to
 prevent transmission of the blood born [sic] pathogen virus.”
 The report goes on to state that N.E. was “counseled” regarding
 his potential risks to others, to have more impulse control, and
 less sexual preoccupation. There was no indication, however,
 that S.P. received any follow-up medical treatment or testing to
 address the potential health risks she was exposed to as a result
 of these incidents.

To the extent that St. Es investigates specific allegations
 of abuse and neglect, the investigations substantially depart
 from generally accepted professional standards. In the period
 between January 4 and May 11, 2005, 14 abuse allegations were
 investigated, three of which were substantiated. The
 investigations often fail to reconcile conflicting evidence. As
 a result, more often than not, allegations of abuse are
 unsubstantiated. In the limited cases where allegations are
 substantiated, programmatic or systemic issues are rarely
 addressed and remedies are deficient. For example, in one case
 where the patient’s allegation was sustained, the patient alleged
 that three male Forensic Psychiatric Technicians had physically,
 sexually and verbally abused her. The investigator’s findings
 stated “the allegations made by the patient seem to have
 occurred, although she may have exaggerated the degree of the
 abuse and the patient is afraid of the staff and what they may
 say or do to her for reporting these allegations.” The
 investigator recommended reassignment of the staff to another
 forensic unit and training. Although it is unclear which
 allegations “seem[ed] to have occurred,” if sexual and physical
 abuse indeed occurred to the patient, at any level, it is
 unacceptable for the offending staff members to simply be
 relocated to another unit where these abuses potentially could be
 repeated against other patients. 

Finally, as of our visit in June 2005, the Risk Manager, who
 is the individual responsible for conducting the abuse
 investigations, was recently appointed. Not only did he state
 that no additional abuse investigations had been conducted since
 his appointment several months earlier, he had not received any
 training in investigating abuse allegations. 


-13­

4. Quality Assurance and Improvement

Generally accepted professional standards dictate that a
 hospital like St. Es develop and maintain an integrated system to
 monitor and assure quality of care across all aspects of care and
 treatment. Such a quality assurance system must incorporate
 adequate systems for data capture, retrieval, and statistical
 analysis to identify and track trends in patient treatment.
 Throughout this letter, we enumerate various failures at St. Es
 to provide adequate care and treatment for its patients. With
 few exceptions, St. Es has failed to identify these problems
 independently, or formulate and implement remedies to address
 them. Consequently, actual and potential sources of harm to
 St. Es patients are going unaddressed.

For example, there is no indication that the numerous
 problems with polypharmacy,5
 as noted in more detail below in
 Section B.2, are being addressed. Although minutes of the
 Pharmacy & Therapeutics (“P&T”) Committee indicate some attention
 to the risks of this practice, there is no documentation of any
 specific actions to address systemically the incidents of
 polypharmacy, other than bringing it to the attention of the
 psychiatrists. In fact, the P&T Committee January 2005 meeting
 minutes state that “[t]he director of psychiatric services has
 raised the issue at numerous psychiatrists’ meetings with little
 improvement to date.” Similarly, as outlined in more detail
 below, the forms utilized for medication monitoring are seriously
 deficient and are not, but should be, integral parts of quality
 assurance and improvement.

To the extent that incidents are reviewed in a systemic
 manner, they are reported in a quantitative manner and there is
 no qualitative review. For example, the Quarterly Performance
 Improvement Report, dated April 29, 2005, reported that there was
 a 41% increase in patient-to-patient altercations from the
 previous quarter and a 76% increase in patient falls. However,
 there was no further information or analysis on the causes of
 these marked increases of incidents. Although quantitative
 review is an important first step to St. Es’ performance
 analysis, qualitative review of the data is essential to
 meaningful progress and improvement to the level and substance of
 patient care and treatment at St. Es.

5
 Polypharmacy is the contemporaneous use of multiple
 medications to treat the same condition.


-14­

Similarly, the nursing department’s limited number of
 performance indicators are quantitative rather than qualitative.
 A more meaningful qualitative analysis of the nursing process
 should be completed. For example, at present St. Es merely
 counts the number of hospitalizations and emergency room visits.
 A more detailed analysis of hospitalizations and emergency room
 visits is necessary. Precipitating factors that led to
 hospitalization, the care and treatment after returning from the
 hospital, and, in some instances, the reasons for repeated
 hospitalizations and/or death were not appropriately analyzed and
 reviewed for trends and patterns. The data that St. Es does
 collect suggests patterns of problems. For instance, the high
 number of hospital visits involving common but serious
 conditions, such as dehydration and constipation, require further
 review and analysis to formulate and implement remedies to
 adequately address their unnecessary and avoidable recurrences to
 St. Es patients. 

5. Environmental Health and Safety Issues

St. Es also fails to provide patients with a safe living
 environment. St. Es is rife with serious environmental hazards,
 many of which pose risks of serious injury, illness, and death.
 These environmental deficiencies exacerbate the plethora of
 deficiencies in patient care and treatment identified throughout
 this letter. In a facility serving people at risk of harming
 themselves or others, the environment should be free of physical
 risks and environmental hazards. St. Es egregiously departs from
 this generally accepted professional standard of care.

The physical plant of St. Es is in a state of severe
 deterioration and serious dilapidation. As a result, St. Es’
 physical environment contains a number of serious health risks
 and safety hazards. For example, the kitchen is infested with
 vermin and insects, as evidenced by a considerable amount of mice
 droppings, cockroaches, and insects observed throughout the
 kitchen area, especially in food storage areas. Many of the
 vermin and rodent bait traps were full. Also, the kitchen
 garbage disposal was not working, had exposed electrical wiring,
 and was clogged with dirty water and food debris. The stench
 emitting from the garbage disposal was overwhelming. These
 deplorable and unsanitary conditions in the food preparation area
 are unacceptable and pose serious health hazards. In addition,
 we observed a number of patient bedrooms with bottles filled with
 urine, a soiled diaper placed in an open trash can, and dirty
 clothing piled in the corners of the rooms. Given the existing
 rodent and insect problems at the hospital, these conditions only
 exacerbate the abhorrent sanitation problem.


-15­

Because St. Es’ preventative maintenance program was
 discontinued in 1999, reportedly due to budgetary constraints,
 the 150-year-old physical structure continues to deteriorate at
 an accelerated pace. Hospital and maintenance records reflect
 ongoing problems with heating, air conditioning, water
 temperature, and door locks. In most buildings, electrical,
 plumbing, heating, air conditioning, and mechanical systems are
 minimally functioning and require constant repair. It was also
 reported that many of the physical plant support systems and
 equipment are broken and obsolete. For example, only two of the
 four elevators in the forensic ward were operable at the time of
 our visit, and one elevator has been inoperable for over five
 years. 

St. Es patients have a constitutional right to basic care.
 Youngberg, 457 U.S. at 315-16. The lack of basic care at St. Es
 (e.g., heat, air conditioning, plumbing and electricity) places
 patients at great health and safety risk. For example, during
 our visit on a hot day in late June, the air conditioning unit in
 Unit CT2-D was broken. This is particularly hazardous for
 patients with respiratory problems and who are bedridden. Other
 examples include excessively hot water temperatures for the
 bathroom sinks in the geriatric wards, at 140-144E Fahrenheit,
 exposing elderly patients to scalding water. Conversely, water
 temperatures for the kitchen dishwasher, at 120E Fahrenheit, were
 not high enough (i.e., 180-195E Fahrenheit) to sanitize utensils
 and dishes. Additionally, during our visit, the mechanical room
 of a patient-occupied building contained exposed electrical
 systems and equipment flooded with seven to eight feet of water.
 The risk of execution was palpable. 

St. Es does not have an adequate fire safety and prevention
 program. Given the size of the campus, the existing dangerous
 conditions of the buildings, and the substantial potential for
 electrical fires, patients are exposed to serious risks of harm
 and death. For example, in five patient-occupied buildings,
 there are a number of inoperable smoke dampers.6 In building
 CT-5, 23 out of 27 smoke dampers are inoperable. In the event of
 a fire or smoke emergency, patients would be exposed to serious
 risk of injury and death.

6
 Smoke dampers restrict the spread of smoke in HVAC
 systems that are designed to be automatically closed down in the
 event of a fire or control the movement of smoke within a
 building when the HVAC system is operational in engineered smoke
 control systems. 


-16­

Moreover, the last fire alarm inspections for the forensic
 and acute care units were completed in 2003. The 2003 inspection
 failed three of the ten forensic wards and found that 17 of 36
 smoke detectors to be inoperable. Similarly, St. Es’ fire plan,
 dated November 12, 1996, is seriously outdated, but more
 importantly, it was never approved by any competent authority or
 governmental agency, as required by law.

B. PSYCHIATRIC AND PSYCHOLOGICAL CARE AND TREATMENT

Determining whether treatment is adequate focuses on whether
 institutional conditions substantially depart from generally
 accepted professional judgment, practices, or standards.
 Youngberg, 457 U.S. at 353; United States v. Weston, 255 F.3d
 873, 876 (D.C. Cir. 2001) (citing Youngberg for establishing
 proposition that determination of medically appropriate course of
 action “obviously depends on the judgment of medical
 professionals.”). Similar protections are accorded by federal
 law. See, e.g., Title XIX of the Social Security Act, 42 U.S.C.
 § 1395hh, and implementing regulations, 42 C.F.R. Parts 482-483
 (Medicaid and Medicare Program Provisions). 

Generally accepted professional standards require that a
 patient in a mental health hospital be provided a treatment
 program resulting from interdisciplinary treatment planning that
 leads to clinically appropriate goals specific to the patient’s
 needs and designed to support the patient’s recovery and ability
 to sustain him or herself outside the hospital. Inadequate
 treatment causes harm because it fails to stabilize the patient’s
 clinical condition, leads to the patient’s further
 decompensation, and/or unnecessarily prolongs the
 institutionalization of the patient. 

St. Es fails to provide its patients with adequate
 psychiatric and psychological care and treatment because of
 inadequate treatment planning and inadequate psychological and
 psychiatric services. Specifically, deficiencies in treatment
 planning include inadequate assessments and diagnoses,
 insufficient treatment plans, and failure to provide ongoing
 assessments. In addition, St. Es provides inappropriate
 medication management and monitoring and deficient behavioral
 treatment plans and programs.

1. Failure to Provide Adequate Treatment Planning

Treatment planning must incorporate a logical sequence of
 interdisciplinary care: 1) the formulation of an accurate
 diagnosis based on adequate assessments conducted by all relevant


-17­

clinical disciplines; 2) the utilization of the diagnosis to
 identify the fundamental problems that are caused by the
 diagnosed illness; 3) the development of specific, measurable,
 and individualized goals that are designed to ameliorate problems
 and promote functional independence; 4) the identification of
 appropriate interventions that will guide staff as they work
 toward those goals; and 5) ongoing assessments and, as warranted,
 revising the treatment plan. In order to be effective, the
 treatment plan should be comprehensive and include input from
 various disciplines, under the active direction and guidance of
 the treating psychiatrist who is responsible for assuring that
 relevant and critical patient information is obtained and
 considered. 

St. Es’ treatment planning substantially departs from
 generally accepted professional standards. From initial
 diagnosis and assessment, to the skills and functioning necessary
 for recovery and ultimate community reintegration, St. Es’
 treatment planning fails to meet the fundamental requirements for
 the treatment and rehabilitation needs of its patients. As a
 result of these deficiencies, patients’ actual illnesses are not
 being properly assessed and diagnosed; patients are not receiving
 appropriate treatment; patients are exposed to potentially toxic
 treatments for conditions from which they do not suffer; patients
 are not receiving appropriate psychiatric rehabilitation;
 patients are at risk of self-harm and harm from other patients;
 patients are subject to excessive use of restrictive treatment
 interventions, increased risk of relapses and repeat
 hospitalizations; and patients’ options for discharge are
 seriously limited resulting in unnecessary prolonged
 hospitalization, and, with respect to forensic patients,
 prolonged involvement in the criminal justice system. 

a. Inadequate Psychiatric Assessments and
 Diagnoses

Adequate assessments lead to accurate diagnoses. It is
 axiomatic that an effective treatment plan must begin with an
 accurate diagnosis. An adequate assessment establishes the
 parameters for individualized, targeted, and appropriate
 interventions that meet the medical and psychological needs of
 the patient. Adequate assessment of a mental health patient for
 treatment planning purposes requires input from various
 disciplines, under the active direction and guidance of the
 treating psychiatrist.


-18­

At a minimum, an initial assessment should include: a) an
 adequate review of presenting symptoms and the individual’s
 mental status; b) a provisional diagnosis and differential
 diagnosis; and c) a plan of care that includes specific
 medication and other interventions to ensure safety of the
 individual and others. As more information becomes available,
 the assessment must be updated to include: a) a history of the
 presenting symptoms from the individual based on the individual’s
 level of functioning and from collateral sources, as available;
 b) a course of the symptoms and setting within which the symptoms
 occur; c) the relevant historical findings in the patient’s
 biological, behavioral and social domains; d) a review and
 critical examination of diagnostic conclusions made in the past
 as more information becomes available; e) review of medical and
 neurological pathology and their impact on current status of
 symptoms and treatment; and f) a complete mental status
 examination. 

Psychiatric assessments at St. Es are grossly inadequate
 resulting in diagnoses that are without clinical justification.
 For example, upon admission to St. Es in September 2003, a
 patient, O.L., was given two alternative diagnoses because the
 treating psychiatrist could not determine at the time of
 admission which diagnosis applied. The treating psychiatrist,
 however, never finished the initial assessment so the patient’s
 diagnosis was never finalized. Two years later at the time of
 our visit, the psychiatrist still had not finished the initial
 diagnosis and was unable to provide a reason for the substantial
 delay. Another example of an inappropriate assessment and
 diagnosis involves W.P. W.P. was given two opposing diagnoses,
 one of which ruled out the possibility of the other.
 Notwithstanding the fact that a diagnosis of one type ruled out
 the other, his treating psychiatrist erroneously stated that both
 diagnoses were appropriate. 

Additionally, St. Es patients are routinely given tentative
 and unspecified diagnoses (often referred to as “rule out” or
 “R/O” or “not otherwise specified” or “NOS”) without evidence of
 further assessments or documented observations required to
 finalize the diagnoses. For example, A.O. was diagnosed with
 such an unspecified diagnosis upon her admission in October 2004.
 Notwithstanding this patient’s repeated and increasingly
 assaultive behavior against other patients and unresponsiveness
 to her medication regimen, her treating psychiatrist still did
 not specify a diagnosis for more than eight months stating that
 he liked to “wait and see.” As a result of this treating
 psychiatrist’s failure to adequately diagnose, not only is his
 care contrary to generally accepted professional standards, but


-19­

it has exposed this patient and other patients to increased harm
 and risk of harm. In yet another example, V.B. was diagnosed
 with dementia NOS. Her treating psychiatrist was asked about the
 rationale for the diagnosis of dementia and she responded “I do
 not know if it is dementia or schizophrenia.” Although chronic
 schizophrenia may be accompanied by features of a dementing
 illness, generally accepted standards require, at a minimum,
 certain criteria and a work-up to identify possible causes for a
 separate diagnosis of dementia NOS. When asked about these
 criteria, the psychiatrist said that “[the patient] has been
 going down hill.” She was unable to specify the criteria that
 justify a diagnosis of dementia. When asked about any follow-up
 testing to delineate the type and possible causes of dementia,
 she said, “this woman has been here for a long time, I did not do
 any laboratory tests.”

Our review also identified a number of psychiatric
 assessments conducted by medical students who have no formal
 psychiatric residency training, and, in some of those cases,
 there was no oversight or review by a supervising psychiatrist.
 For example, D.B. was assessed by a medical student who noted
 that D.B. has active delusions and hallucinations and thoughts of
 harming himself and others by stabbing them. There was no review
 by a psychiatrist for this high risk individual.

These examples demonstrate failures in the preliminary
 stages of assessment and diagnosis. In the vast majority of
 cases that we reviewed, St. Es’ psychiatric assessments were
 inaccurate, incomplete, and uninformative. St. Es also fails to
 adequately review or critically examine past diagnoses or update
 diagnoses based on the patient’s historic response to treatment.
 As a result, treatment interventions are not aligned with the
 individual’s needs. Because assessment and diagnoses are the
 bases upon which all subsequent care, treatment and services are
 based, it is inevitable that a chain reaction of harmful
 treatments and interventions follows. St. Es’ assessments and
 diagnoses practices grossly depart from generally accepted
 professional standards, and, as a result, patients experience
 harm and a significant risk of harm.

b. Inadequate Psychological Assessments and
 Diagnoses

Generally accepted professional standards require that
 before a patient’s treatment plan is developed, facility
 psychologists must provide a thorough psychological assessment of
 the patient to assist the treating psychiatrist in reaching an
 accurate diagnosis and provide an accurate evaluation of the


-20­

patient’s psychological needs. Moreover, as needed, additional
 psychological assessments should be performed early in the
 patient’s hospitalization to assist with any psychiatric
 disorders that may need further study and/or diagnosis, such as
 rule out, “deferred,” and “not otherwise specified” diagnoses.
 As with poor psychiatric assessments, inadequate psychological
 assessments contribute directly to improper treatment
 interventions, exposing patients to actual or potential harm,
 particularly in the area of improper medication administration.
 Without the adequate support of the psychologists in reviewing
 behavior data regarding responses to medication, psychiatrists
 are unable to adequately prescribe and adjust medication
 regimens. Furthermore, in the context of patients’ needs for
 psychological supports and adequate life skills, harm occurs
 through prolonged and/or exacerbated behavioral disorders that,
 in turn, needlessly prolong patients’ hospitalization and block
 their successful re-entry into the community. 

Like psychiatric assessments, psychological assessments and
 evaluations at St. Es, with few exceptions, are also inaccurate,
 incomplete, and uninformative. The psychological assessments we
 reviewed were very brief, often consisting of only one word.
 They made no attempt to convey the psychological and behavioral
 details from the patient’s history in a manner that could
 logically lead to specific psychological treatment interventions.
 In those few cases where the psychological assessments included a
 list of patient skills, the skills had little relevance to
 psychological treatment and were incapable of being translated
 into individualized treatment goals and psychological
 interventions. 

Because of St. Es’ inadequate psychological assessments,
 treatment recommendations are not individualized to patient needs
 and are mostly generic descriptions such as “stabilize on meds.”
 Such grossly deficient recommendations are inadequate to
 formulate psychological interventions. Furthermore, rarely did
 the psychological assessments we reviewed recommend the
 development of a behavior plan, even in patients with a history
 of aggression or self-injury or who had been frequently subjected
 to seclusion and restraints. 

The above problems are compounded by a lack of adequate
 psychological staff. There are only four clinical psychologists
 for the 229 civil patients at St. Es, and the only psychologist
 with expertise in behavioral management has substantial


-21­

administrative responsibilities.7 This makes it virtually
 impossible for the current staffing of psychologists to perform
 their duties and responsibilities in compliance with generally
 accepted professional standards. Indeed, psychologists are
 notably absent from the treatment team process for civilly-
 committed patients at St. Es. Accordingly, few, if any, patient
 files contained evidence of adequate behavioral treatment.
 Psychological supports and the development of adequate life
 skills are commonly unaddressed. As a result, psychology
 services are fragmented and not integrated into overall clinical
 care. Patients are exposed to actual or potential harm because
 their behavioral disorders are prolonged and/or exacerbated and,
 this in turn, needlessly extends the patients’ confinement in a
 highly restrictive environment. 

Serious behavioral problems commonly found in psychiatric
 hospital inpatient populations were glaringly absent from
 patients’ charts and diagnoses, such as self-injurious behavior
 (“SIB”), pica,8 and polydipsia.9
 There were surprisingly few
 cases of SIB noted in charts or identified in discussion with
 unit staff, and no cases of pica or polydipsia. After a formal
 request for a list of St. Es patients with polydipsia, we were
 provided one name. This is contrary to national rates, where it
 is common for facilities such as St. Es to have rates of
 polydipsia exceeding 20% of the patient population. Accordingly,
 it is implausible that there was only one case at St. Es,
 indicating that cases are not being detected and treated. 


7

While regulations do not provide for a specific number


of psychological staff, our consultant opined that facilities


such as St. Es should generally have, at a minimum, one


psychologist for every unit (25-30 patients per unit); at least


three full-time equivalent (“FTE”) psychologists with behavioral


management expertise; and two FTE neuropsychologists. 


8
 Pica is a common eating disorder that is prevalent in patients with mental illness or cognitive impairment in which a person repeatedly eats non-food items.

9
 Polydipsia is a common disorder that is prevalent in
 chronic psychiatric inpatients, particularly those patients
 diagnosed with schizophrenia. This disorder causes a person to
 feel constantly thirsty and to seek to drink excessive amounts of
 water. It may cause incontinence, vomiting, seizures, and/or
 water intoxication, and even death.


-22­

Finally, St. Es’ psychologists fail to adequately assess and
 monitor patients for behavioral responses to their medication
 regimen, particularly those patients on multiple medications for
 whom continued monitoring and evaluation is critical to treatment
 success. An essential role of psychologists in hospitals such as
 St. Es is to design and monitor interventions for patients with
 behavioral problems, including monitoring behavioral responses to
 medications. The psychologist should be assisting the
 psychiatrist in the appropriate use of polypharmacy and dosing
 requirements in developing and updating a patient’s treatment
 plan. Unfortunately, at St. Es, the psychologists fail to
 adequately review behavioral data or a patient’s response to a
 particular pharmacological intervention. The few reviews we did
 discover included serious flaws that invalidated their clinical
 conclusions. Consequently, St. Es generally fails to document a
 rationale for the prescribed medications and, oftentimes, there
 is an inadequate correlation between diagnosis and the prescribed
 medication. 

As a result of inadequate psychological assessments,
 diagnoses, and monitoring of behavioral data to support proper
 medication regimens, patients at St. Es are subject to harm
 through unnecessary and often toxic polypharmacy. We found
 numerous examples where medications are used in lieu of
 behavioral treatment, often without benefits. For example,
 N.P.’s treating psychiatrist acknowledged in a treatment plan
 meeting that his medications were ineffective and his challenging
 behavior of throwing urine and feces at staff in response to
 hands-on care continued unabated. Although this individual is an
 ideal candidate for behavioral intervention, St. Es has failed to
 provide him with a behavioral plan. Similarly, I.C. has
 behavioral problems, such as chewing papers, digging through the
 trash, and fighting with his peers. His treatment plans fail to
 include behavioral interventions for these behaviors, even though
 these behaviors have not responded to medication. 

c. Inadequate Treatment Plans

Generally accepted professional standards mandate that
 adequate treatment plans: 1) integrate the individual
 assessments, evaluations, and diagnoses of the patient that are
 performed by all disciplines involved in the patient’s treatment;
 2) identify a patient’s individualized needs; and 3) identify
 treatment goals and interventions related to the patient’s needs
 in order to support the patient’s recovery and ability to sustain
 him or herself in the most integrated, appropriate setting.
 Moreover, the content of the treatment planning should be person-
 centered, strength-based, and outcome-focused. Conversely,


-23­

treatment plans should not focus on symptom reduction and should
 not provide generic and/or unattainable goals and objectives. 

Not only do St. Es’ treatment plans lack any meaningful
 involvement of psychologists, when the treatment plans attempt to
 address behavioral issues, they are grossly deficient. They are
 rarely individualized and the goals and interventions are
 typically boilerplate and unrelated to the goal of recovery and
 community reintegration. For example, H.Y.’s March 31, 2005,
 treatment plan identifies active psychotic symptoms including
 auditory hallucinations, paranoid delusions, and agitation as her
 “first problem.” However, her record indicates that she has been
 free from all these symptoms for several months. Accordingly,
 H.Y.’s hospitalization may be unduly prolonged based on a
 treatment plan that focuses on a need that no longer exists.
 Similarly, D.B.’s treatment plan lists “noncompliance with
 medications” as a problem. The plan, however, fails to delineate
 any of the factors that contribute to the non-compliance.
 Without this, staff are unable to intervene to help this patient
 with his problems. In the majority of the charts reviewed, the
 treatment plans merely repeated some manifestation of the mental
 illness such as “non-compliance with medication,” and many of the
 issues identified in the plans were no longer active but already
 resolved. The plans failed to address specific skills required
 to mitigate the impairments that underlie or accompany the
 illness. This is a substantial departure from generally accepted
 standards. 

In addition, treatment plans at St. Es incorporate goals and
 objectives that are not related to the actual needs of the
 patients, not achievable, and/or not measurable or specific. For
 example, O.L.’s short-term goal stated “patient will take
 medications.” However, the record indicated that during this
 same time frame she was “cooperative” and, in fact, one of her
 strengths listed that she “accepts her medications.” It is
 inexplicable how O.L.’s strength is also her problem. In another
 example, F.T.’s treatment plan says both that the patient
 recently exhibited assaultive behavior towards another patient
 and that the patient has not had any altercations with other
 patients or staff.

Similarly, H.Y.’s October 26, 2005 treatment plan stated
 that her short-term goals were to “accept medications and
 verbalize concerns” and “attend treatment malls.” During the
 same time frame, her strengths are listed as, “compliant with
 medications and takes them, attends groups.” Her previous
 treatment plan dated February 23, 2005, stated the following
 goals, “avoid the influence of hallucinations and paranoid


-24­

thinking, maintain behavioral composure” and “identify, refute
 and understand symptoms for each condition and react to them in a
 constructive manner.” These goals and objectives are not
 possible given the patient’s level of functioning. 

Another example of a patient with an unattainable goal is
 X.M. X.M. is diagnosed with dementia due to head trauma with
 behavioral disturbance and seizure disorder. Although his chart
 indicates that he has severe cognitive impairment, his short-term
 goal stated, “will be able to notify staff if he is having a
 seizure.” Based on this treatment plan, X.M. will be
 hospitalized indefinitely. His goal is unachievable. More
 disturbing, X.M. also has serious problems with violence and
 sexually inappropriate behavior. Nevertheless, his treatment
 plan glaringly omits any intervention that includes a functional
 analysis of these behaviors and specific behavioral strategies to
 reduce these behaviors and to teach him appropriate skills
 instead. Additionally, there were no specific interventions to
 address his significant cognitive impairment. As a result, not
 only is he deprived of needed treatment with the consequence of
 prolonged hospitalization, but other patients are endangered. 

Even when a treatment plan does identify a patient’s need
 and specifies an intervention, the intervention is not
 consistently implemented as required by generally accepted
 professional standards. For example, V.B.’s treatment plan
 intervention states that “[psychiatrist] will do supportive
 psychotherapy, and [psychiatrist] will monitor patient’s behavior
 and prescribe meds according[ly].” Not only are these
 interventions generic, not individualized and not linked to
 outcomes, there is no documentation that the psychiatrist or
 anyone else provided any of these interventions. Moreover,
 although V.B.’s significant cognitive and self-care deficits have
 been resistant to her medication regimen, they appear to be the
 main reason for her continued hospitalization as her treatment
 plan fails to include behavioral interventions to address these
 needs.

d. Failure to Provide Ongoing Assessments

Generally accepted professional standards require that
 psychiatric assessments continue on an ongoing basis throughout 
 a patient’s stay at a psychiatric hospital, involve timely and
 thorough reevaluations of behaviors targeted for treatment, and
 evaluate new clinical developments. Such ongoing assessments
 should be conducted at a frequency that reflects the individual’s
 clinical needs, delineate the nature of behaviors targeted for 


-25­

treatment, and thoroughly document clinically significant changes
 in the individual’s condition. Furthermore, to ensure continuity
 of care when individuals are transferred between units, an
 additional psychiatric assessment should be done by the referring
 psychiatrist, particularly when new treatment teams take over the
 responsibility for providing treatment. 

A.T. presents a tragic example of St. Es’ failure to provide
 timely ongoing assessments, including assessment of important
 risk factors. Although his diagnoses identified his problems
 with impulse control, explosive conduct and antisocial behavior
 disorder, his assessment did not include a plan of care other
 than a statement that the intervention was to provide medication
 in order to ensure safety. In March 2004, he assaulted another
 patient, and the victim suffered severe head trauma resulting in
 a coma. The victim died in March 2005, allegedly as a result of
 injuries sustained during the assault. Furthermore, A.T.
 assaulted a second patient on November 12, 2004. During our
 review in June 2005, the last psychiatric note for this patient
 was written on December 12, 2004. Despite the significant acts
 of violence that this patient had engaged in recently, including
 an allegedly deadly act of violence, he had not been seen, let
 alone actively treated, by a psychiatrist in over six months.
 Moreover, other than an increase in his medication after the
 November 2004 assault, there was little, if any, reassessment and
 attention to the psychiatric care of this extremely high risk
 patient.

Moreover, although there are significant risks associated
 with certain medications and/or combinations of medications,
 there is little ongoing assessment of patients’ reactions or
 progress on various medication trials. For example, U.B. was
 treated with a psychotropic drug, aripiprazole, for her psychotic
 illness. On April 13, 2005, the treating psychiatrist
 discontinued the aripiprazole and started her on another
 psychotropic drug, olanzapine. Approximately two days after the
 start of olanzapine, U.B. suffered a seizure and was sent to the
 emergency room for an evaluation. U.B. had no prior history of
 seizures. A neurology assessment later concluded that the
 seizure was induced by olanzapine. It appears that the
 psychiatrist changed the patient’s medication based on a dated
 nursing report. The psychiatrist apparently assumed that U.B.
 was refusing her aripiprazole on April 13 and ordered olanzapine
 instead. However, according to the chart, U.B. was not refusing
 the prescribed aripiprazole at the time of the psychiatric note
 on April 13, and had in fact complied with the aripiprazole
 medication on April 11, 12, and 13. The report of her treatment
 refusal was apparently based on the fact that she had refused the


-26­

medication on April 9 and 10. Not only was the psychiatrist
 careless in his cursory evaluation of the patient’s current
 status and condition, he changed her medication without weighing
 the risks of medication replacement which directly caused her to
 have a seizure. 

Another example of St. Es’ failure to conduct ongoing
 assessments of patients’ reactions to medications with
 significant risks involves J.R. J.R. has been taking an
 antipsychotic drug that carries the potential for the serious
 side effect of tardive dyskinesia (“TD”),10
 for several years. 

When his treating physician was asked about the procedure
 for identifying TD, he was unable to state the correct procedure
 to evaluate for early signs of this disorder. Furthermore,
 J.R.’s chart did not include any psychiatric progress notes and
 the last screening test for identifying TD and related disorders
 was dated over four years earlier. 

Although patients at St. Es are routinely transferred from
 unit to unit, assessments are rarely completed upon transfer and
 the receiving units typically do not know important information
 about the patients’ medication, illnesses, or treatments. For
 example, T.N. has a diagnosis of chronic paranoid schizophrenia
 and over a two month period, he was placed on four different
 units. His transfer assessments were incomplete, completed by a
 medical student without a psychiatrist’s review and supervision,
 without a summary of medication trials and his response to
 treatment, without current targets for treatment, without a
 projected discharge plan, and without any rationale for or
 benefits of the transfers. Similarly, O.G. was placed on Unit
 CT2 upon admission in March 2005. He eloped a month later. When
 he returned, he was transferred to Unit RMB6 and a note in his
 chart indicated that he was “inappropriate” for Unit CT2. Yet,
 he was transferred back to Unit CT2 on May 3 and eloped again on
 May 9. A major contributing factor to the deficiencies regarding
 inter-unit transfers is that the units do not have distinct
 missions or purposes. Accordingly, patients are moved from unit
 to unit in an ad-hoc fashion and their distress is likely
 increased due to frequent readjustments to different staff and 

10
 Tardive dyskinesia is a potentially irreversible
 movement disorder. Symptoms of tardive dyskinesia include
 involuntary, aimless movements of the tongue, face, mouth, jaw,
 or other body parts.


-27­

settings. There is a significant lack of continuity of care, and
 communications between the transferring and receiving treatment
 teams are seriously deficient.

2. Failure to Provide Adequate Psychiatric and
 Psychological Services

The provision of effective interventions for patients in
 care settings such as St. Es requires the integrated
 participation of various treatment services, the exact
 configuration of which is dictated by the individual patient’s
 needs. Under generally accepted professional standards, a mental
 health hospital has the duty to provide adequate supports and
 services necessary to implement a patient’s treatment plan,
 including providing medication treatments based upon evidence of
 appropriateness, safety and efficacy; implementing a monitoring
 system to ensure appropriate use of medications; and instituting
 an adequate array of relevant treatment programs to meet the
 specific needs of its patient population. Each of these services
 at St. Es substantially departs from generally accepted
 professional standards causing substantial harm to patients,
 including inadequate and counterproductive treatment, serious
 physiological and other side effects from inappropriate and
 unnecessary medications, and excessively long hospitalizations. 

a. Inadequate Psychiatric Services

St. Es’ psychiatric supports and services substantially
 deviate from generally accepted professional standards,
 potentially exposing patients to harm and significant risk of
 harm due to the failure to: 1) exercise adequate and appropriate
 medication management; and 2) monitor medication side effects.

i. Inappropriate Medication Management

The use of medications must always be justified by the
 clinical needs of a patient. Medication treatments must be
 informed by psychiatric and pharmacological literature and
 professional practice guidelines. Medication use must be part of
 an interdisciplinary plan of care that considers the impact of
 medication use on individuals’ quality of life. Medication
 treatment must be integrated with behavioral treatment so that
 medications are not used in lieu of behavioral treatment, for the
 convenience of the staff, or as punishment. There must be a
 documented rationale for medication use based on clinical and
 empirical criteria, including diagnosis, presenting symptoms, 


-28­

history of response to previous treatments, and the specific
 risks and benefits of chosen treatments. Finally, practitioners
 must be alert to avoid polypharmacy, where appropriate. 

St. Es fails to meet every one of the above standards of
 professional care. First, medications are not prescribed as an
 integral part of treatment plans. Treatment plans typically
 contain generic and standardized references to the use of
 medications without specification of the indications for use,
 target behaviors, rationale, or a risk/benefit analysis. For
 example, A.O.’s treating psychiatrist was unaware that A.O. had
 gained over 55 pounds in five months and failed to acknowledge
 that weight gain was a risk factor associated with the medication
 the psychiatrist had prescribed. 

Patients’ complex medication treatments are often continued
 with little to no observation of the effects on the patients or
 review of the risks and harms for prolonged medication regimens
 and polypharmacy. For example, M.K. is diagnosed with a
 psychotic illness and mild mental retardation. His current
 medication regimen consists of a number of antipsychotic
 medications. Although his records for the past year indicate
 that his psychotic symptoms have stabilized and he has been
 active in day program activities off campus, his treating
 psychiatrist could not rationalize the current need for
 antipsychotic polypharmacy or the need for long-term treatment
 with certain prescribed antipsychotic medications. Equally, if
 not more disturbing, is that the psychiatrist could not identify
 the risks of further cognitive deterioration associated with the
 particular antipsychotic treatments prescribed, especially in
 such an individual diagnosed with mild mental retardation. It is
 professionally well-known that the side-effects for the
 benzodiazepines11 and anticholinergic agents12
 he prescribed
 include exacerbating cognitive decline and a high potential for
 addiction. Thus, M.K.’s hospitalization and complex and
 potentially life-threatening medication regimen may be
 unnecessarily prolonged based on outdated symptoms. 

11
 Benzodiazepines are medicines that help relieve
 nervousness, tension, and other symptoms by slowing the central
 nervous system.

12
 Anticholinergic agents are drugs that block the action
 of acetylcholine. Acetylcholine is a neurotransmitter--a
 chemical messenger that helps nerve cells communicate. 


-29­

Z.T. is another example of a patient who suffered harm as a
 result of St. Es’ gross departure from professional standards.
 He is diagnosed with schizoaffective disorder, alcohol abuse and
 cognitive disorder NOS. As of November 2004, his medication
 regimen consisted of a number of psychotropic drugs:
 haloperidol, quetiapine, benztropine mesylate, doxepin, trazodone
 and diphenhydramine. There was no documentation to justify or
 address the risks of long-term continuous use of three
 psychotropic medications (i.e., doxepin, benztropine mesylate and
 diphenhydramine) with significant anticholinergic effects,13
 serious risk factors for an individual with cognitive impairment.
 In January 2005, treatment with another psychotropic drug,
 clonazepam, was added, which increases risks for cognitive
 decline, falls and addiction, again without justification or
 documentation of the added risks for an individual diagnosed with
 cognitive impairment and alcohol abuse. On January 10, 2005, he
 was noted to be “more confused than usual, drowsy and unsteady”
 along with a notation that Klonopin [clonazepam] was probably
 contributing to confusion and that another psychotropic drug,
 Depakote [divalproex], was to be added to “decrease agitation.”
 There was no documentation of why the added treatment for
 “agitation” was necessary if he was described to be “drowsy.”
 Subsequently, conflicting orders regarding the use of clonazepam
 were written in the chart: January 10 to discontinue clonazepam
 and January 13 to continue clonazepam. As of January 13, 2005,
 the individual was still receiving a regimen of a number of
 psychotropic medications (i.e., haloperidol, quetiapine, doxepin,
 and clonazepam) in addition to a new psychotropic drug,
 amantadine, which replaced benztropine. There was no
 documentation of target symptoms to explain the change of
 treatment to amantadine. On January 17, 2005, a UIR was
 completed to document that he was observed with “unsteady gait”
 and suffered a fall. His overall medication management
 illustrates St. Es’ failures in timely evaluation, proper and
 proactive assessments of the risks and benefits of treatment, and
 attention to high-risk and unjustified use of certain classes and
 dangerous combinations of medications for individuals at risk.
 Moreover, not even an incident report triggered a much-needed
 evaluation.

A tragic example of a patient who may have died as a result
 of St. Es’ gross departures from professional standards is C.O.
 C.O. was diagnosed with schizophrenia, undifferentiated type,
 chronic obstructive lung disease, lactose intolerance, chronic

13
 Anticholinergic effects include confusion, blurred
 vision, constipation, dry mouth, light-headedness, difficulty
 starting and continuing to urinate, and loss of bladder control. 


-30­

constipation, and a seizure disorder. His medication regimen
 included a number of psychotropic drugs (i.e., ziprasidone,
 haldol, benztropine mesylate, lorazepam and divalproex). On
 April 27, 2005, he collapsed in the shower and was admitted to
 the intensive care unit at Greater Southeast Community Hospital.
 He suffered cardiac arrest and died two days later. Although
 C.O.’s records do not provide the exact cause of death, the
 mortality review indicated likely cause of death to include
 cardiac arrhythmia secondary to prolonged QT interval.14

There were numerous instances of grossly inadequate care
 provided to this patient. First, the patient’s ziprasidone, a
 medication known to have potentially life-threatening risks of
 cardiac arrhythmia, was initiated and later increased without any
 assessments or EKG monitoring during the initiation or upward
 titration15 of the medication. Five months later, the chart
 indicated that an EKG was eventually performed and that it showed
 abnormalities, including a prolongation of the QT interval of
 more than 500 msec. A prolongation of the QT interval of more
 than 500 msec is an absolute contraindication of ziprasidone
 treatment. In fact, concomitant treatment with agents that can
 further prolong the QT interval, such as haloperidol, which this
 patient was also taking, is another contraindication to treatment
 with ziprasidone. Moreover, C.O. was also treated with
 benztropine mesylate despite its risk factor for causing
 constipation, a condition for which this patient was not
 routinely monitored and for which he was hospitalized on numerous
 occasions. Finally, notwithstanding the fact that he should have
 been taken off of ziprasidone altogether after the EKG results,
 he was not subsequently regularly monitored or assessed for the
 increased risks while he was continued on the treatment. This
 case is an example of St. Es’ egregious departure from basic
 standards of care that quite possibly played a significant factor
 in this patient’s death.

ii. Inadequate Medication Monitoring

Generally accepted professional standards require that
 facilities such as St. Es adopt and incorporate the necessary
 protections and safeguards to ensure that patients are afforded
 safe and effective pharmacological treatment. Hospitals such as

14
 A prolonged QT interval is the measure of delay between
 heartbeats. 

15
 Titration is a method or the process of determining the
 appropriate concentration of the medication in the smallest
 amount to be effective.


-31­

St. Es must have mechanisms to: 1) monitor practitioners’
 adherence to specific and current guidelines in the use of each
 medication; 2) report and analyze adverse drug reactions; and
 3) report, analyze, and document actual and potential variations
 in the prescription, transcription, procurement/storage,
 dispensing, administration, and documentation categories of
 medication. To the extent that these mechanisms even exist at
 St. Es, they are grossly deficient.

St. Es fails to provide any systematic monitoring to ensure
 appropriate, safe, and effective medication use in the facility.
 St. Es’ current system of monitoring antipsychotic polypharmacy
 utilizes a standard of three or more antipsychotic medications
 instead of the generally accepted standard of two or more
 medications of the same class. 

St. Es’ Pharmacy and Therapeutics (“P&T”) Committee, which
 is responsible for monitoring medication use, also does not
 adequately perform its necessary functions. The P&T Committee
 performs superficial review of medication uses and does not
 implement meaningful corrective actions when problems are
 indicated. The P&T Committee also fails to perform evaluations
 of the utilization of medications as required under an adequate
 monitoring system. 

Furthermore, St. Es’ medication guidelines, which are the
 basis of any effective medication monitoring system, are
 seriously deficient. With the exception of clozapine, St. Es
 does not have any guidelines on the use of psychotropic
 medications, including those with serious potential side effects.
 Furthermore, the guidelines for clozapine are outdated. They
 fail to provide necessary monitoring requirements for a variety
 of risks, including metabolic effects and the potentially life
 threatening risk of myocarditis,16
 and deleterious drug
 interactions with anticonvulsants, diets, and tobacco smoking. 

St. Es’ current system to track and analyze adverse drug
 reactions also has a number of deficiencies, including serious
 under-reporting. The data collection tool is incomplete because
 it does not include basic components, such as a definition of an
 adverse drug reaction, a severity scale, a probability scale, or
 a description of patient outcome. There are no established
 thresholds by which cases of serious drug reactions are analyzed
 or that such analysis takes place at all. There is no data
 analysis to indicate individual or group practitioner trends. 

16
 Myocarditis is the inflammation of the heart muscle, a
 known side effect from the use of clozapine.


-32­

And, there is no evidence that any data on adverse drug reactions
 have been used for performance improvement activities.

Similarly, St. Es fails to provide adequate protection
 against medication errors. For example, the current system
 ignores a number of substantial variances, such as procurement
 and storage, monitoring, and documentation. It does not
 incorporate information or analysis regarding critical breakdown
 points or individual or group practitioner trends. Finally, it
 does not appear that variance data have been used for performance
 improvement activities and there is no evidence of any meaningful
 corrective actions as a result of variance analysis.

Finally, it is apparent that St. Es patients are not
 accurately monitored for the risk of TD. Generally, St. Es’
 psychiatrists are not sufficiently knowledgeable regarding the
 identification and monitoring of TD. Moreover, nursing staff do
 not document any monitoring of TD. In addition, contrary to
 generally accepted standards, baseline and periodic assessments
 utilizing a validated rating instrument, such as AIMS, are either
 never conducted or have not been conducted for several years. In
 fact, psychiatrists appear to be confused as to the medications
 that are associated with TD side effects. For example, when
 T.N.’s psychiatrist was asked about the risks and benefits of his
 continued treatment with benztropine mesylate, a medication
 professionally well-known to be detrimental for patients with TD
 because it masks TD symptoms, he erroneously stated that the
 medication prevents TD.

b. Inadequate Psychological Services

In a mental health hospital, generally accepted professional
 standards require that every patient be provided with a
 rehabilitative treatment plan. The plan must be devised to
 improve the patient’s ability to engage in more independent life
 functions, so as to better manage the consequences of psychiatric
 distress once the patient is discharged from the hospital. To be
 effective, these interventions should address the patient’s
 needs, build on the patient’s existing strengths, and be clearly
 organized in an individualized treatment plan. Moreover, if a
 patient has a behavioral issue, the patients’ treatment plan
 should include a behavioral treatment plan designed to promote
 and facilitate skills development and address the behavioral
 issue. Adequate behavioral treatment plans should contain the
 following minimum information: 1) a description of the
 maladaptive behavior; 2) an analysis of why the patient is having
 the maladaptive behavior and the competitive adaptive behavior
 that is to replace the maladaptive behavior; and 3) documentation


-33­

of how reinforcers for the patient were chosen and what input the
 patient had in the development of such reinforcers along with the
 system for earning the reinforcers. 

i. Inadequate Behavioral Treatment Plans

Except for a few patients on the forensic units, St. Es
 patients who need behavioral treatment plans are not provided
 with them. This is a substantial departure from generally
 accepted professional standards, and not surprising given the
 limited number of psychologists for the civil patients. It is
 also dangerous. 

A significant number of patients at St. Es exhibit dangerous
 or difficult behaviors, such as self-injurious behavior and
 aggressive acting out. Very few, if any, have individual
 behavioral treatment plans. In fact, staff appear to temporarily
 manage and react to dangerous or difficult behaviors instead of
 implementing a plan to identify factors and precursors that
 contribute to these types of behaviors. As a result, patients
 who repeatedly act out or exhibit dangerous behaviors are
 continuously placed on PRN medications and/or placed in seclusion
 and/or restraints after the offending behaviors. For example,
 B.E. is diagnosed with a personality disorder and a cognitive
 disorder due to head trauma. Although he frequently hits or
 attempts to hit others, hits or attempts to hit his head on the
 wall, continually wears a helmet, and is frequently on one-to-one
 supervision, his treatment team has failed to assess his risky
 behaviors; failed to analyze behavioral, environmental, cultural
 or other factors that contribute to the risk; and failed to
 identify any supports to protect B.E. or others from his risky
 behaviors. His treatment plans fail to include needed behavioral
 interventions to address the ongoing risk. In another example,
 I.R. has been noted to be “belligerent, aggressive, and non­
 compliant with medication.” She does not have a behavioral
 treatment plan for her aggressive behavior. Her treatment plan
 merely identifies “supportive psychotherapy and medication” as
 the necessary interventions. Because I.R. is cognitively
 impaired and has difficulty with attention, memory, reasoning,
 and the capacity for self-reflection, supportive psychotherapy is
 an ineffective strategy.

A number of St. Es patients are incontinent of urine and/or
 feces. Although there are some appropriate behavioral treatment
 plans for patients with these problems on the forensic units, we
 could not identify a single example of an adequate behavioral
 treatment plan on the civil units. We observed some patients
 wearing adult diapers and others simply walking around smelling


-34­

of urine. For a number of patients, incontinence is not even
 identified as a targeted problem. For example, V.B. is
 incontinent of both urine and feces and has significant cognitive
 impairment and limited verbalization. St. Es has failed to
 provide V.B. with a behavioral treatment plan for any of these
 significant issues. Each is a barrier to this patient being
 discharged from St. Es.

To the extent behavioral treatment interventions are
 identified for patients with incontinence, they are vague and
 inadequate to reduce or eliminate these behaviors. For example,
 U.N. was noted as incapable of “toileting” and his behavioral
 treatment plan is to “encourage him.” This plan is wholly
 insufficient to address his significant behavior problem.

ii. Inadequate Behavioral Treatment Programs

St. Es has made a significant and commendable effort to
 provide behavioral treatment programs for its civil patients
 through the establishment and development of its treatment mall
 and unit mini-malls.17 The malls provide various programs, such
 as skill development, cognitive development, substance abuse and
 addiction programs for patients with dual diagnoses, psychosocial
 rehabilitation, geriatric programs, and restorative care and
 recovery. Patients are referred by their treatment teams to
 attend specific programs. Once a patient is assigned a program,
 she is given a schedule of groups to attend each day. The core
 groups include mental health and physical health, medication
 skills, social skills, community living skills, and coping
 skills. The elective groups include leisure activity skills, art
 therapy, dance therapy, creative writing, computer literacy, pet
 management, and merchandising. The principle of the malls is for
 patients to obtain targeted treatment through the mall programs
 consistent with their individualized treatment plans.18 The

17 The treatment mall at St. Es is a separate building
 that provides various treatment modules, programs and services.
 Patients typically leave their units and attend the treatment
 mall on a daily basis during the week. Some units provide mini­
 malls on the units to accommodate patients who cannot leave their
 units. 

18
 The forensic unit treatment malls have not yet been
 fully developed. In the meantime, a number of forensic patients
 are taken to the civil treatment malls and some groups and
 activities are conducted on the forensic units. The majority of
 patients who are on the forensic units have been adjudicated Not
 Guilty By Reason of Insanity. They, therefore, are in the


-35­

ultimate goal for all of the programs provided in the mall is, of
 course, discharge from the hospital back to the community. 

Unfortunately, the mall programs to which St. Es patients
 are sent have very little connection to patients’ treatment
 plans. Referral forms are intended to be completed for all
 patients and should identify the goals and recommended mall
 programs. A patient’s referral to a specific mall program should
 be, but is not, justified by and connected to the patient’s
 course of treatment. Instead, the referrals are vague and overly
 general. For example, G.H.’s referral stated that the purpose of
 the referral was to “develop and improve social skills.” Another
 patient’s referral stated that he “can benefit from group
 therapy” (E.O.). These bases for referring patients to the mall
 are not connected to their treatment plans. Furthermore,
 patients’ progress, participation, or lack thereof, during
 treatment mall activities are not routinely recorded or reported
 in a way to inform treatment planning.

In many cases, patients appear to be assigned to treatment
 mall programs for no clinical reason. For example, the
 Restorative Care, Geriatric-Mall, and Recovery Road programs are
 intended for fragile, immobile, and/or medically compromised
 patients. We observed patients who were in the Restorative Care
 program, which provides limited and basic programming regarding
 sensory tasks and activities of daily living, who did not have
 these problems. As a result, these patients were not receiving
 treatment that is relevant to their skills and needs. 

Patients, either because of medical or behavioral reasons,
 who cannot leave their units to attend mall programming are not
 provided any meaningful treatment alternatives. As a result,
 these severely ill patients are maintained with no reasonable
 expectation of change. Further, there are a number of patients
 who should be in nursing homes or housed on specialty units where
 trained staff can meet the unique medical needs of this
 subpopulation. For example, although V.B. and T.U. were
 identified by St. Es’ staff as patients who should be in nursing
 homes, there were no plans for their transfer to a nursing home.

In general, St. Es’ mall programs rarely match their stated
 purpose or they are ineffective programs for the patients who
 have been assigned to them. For example, many groups consisted
 of lectures by therapists or abstract discussion groups, which

hospital for long periods of time. An effective treatment mall
 should be developed and implemented for forensic patients, so
 that they can learn the skills necessary for legal discharge.


-36­

are inappropriate strategies for a number of St. Es patients who
 have significant cognitive impairment. In addition, most groups
 in the cognitive/skill development program offered only arts and
 crafts activities that are not commensurate with the skill levels
 of the patients attending them. The horticulture group involved
 potting plants, but we observed that most of the work was
 completed by the staff for the patients. This is a substantial
 departure from the generally accepted professional standards.
 Those standards require clear instructions, demonstration of the
 desired behavior, and the patient practicing the behaviors,
 followed by further instruction and positive reinforcements
 (e.g., tokens, points, or praise).

C. NURSING CARE AND TREATMENT

Generally accepted professional standards require nursing
 staff to: 1) accurately and routinely monitor, document, and
 report patients’ symptoms; 2) actively participate in the
 treatment team process and provide feedback on patients’
 responses, or lack thereof, to medication and behavioral
 interventions; 3) properly document and monitor the
 administration of medications; and 4) ensure adequate infection
 control procedures. Nursing staff are typically the first
 responders to patients’ medical needs and serve to provide
 crucial and timely information to clinicians and other providers.
 St. Es’ nursing services substantially depart from these
 standards, thereby exposing patients to harm and a significant
 risk of harm.

1. Monitoring, Documenting and Reporting Patients’
 Symptoms

Psychiatrists who prescribe medications and psychologists
 and therapists who oversee therapeutic interventions must rely
 upon nursing and other unit staff to document and report
 symptomology. Nursing staff have an obligation to monitor and
 record patients’ problems and symptoms adequately. Without such
 information from nursing staff, the treatment teams cannot
 properly review and modify, if necessary, patients’ treatment
 plans. For example, patient U.Y. has a history of becoming
 assaultive or violent towards himself or others if he is denied
 PRN medication. In one instance, he had to be placed in wristlet
 and anklet restraints because he became agitated when he was told
 that his PRN Tylenol was not on the unit and staff had to go to
 another unit to retrieve it. In another instance, he requested
 his PRN klonopin and was told that the nurse would have to
 retrieve the medication from another unit. The patient hit the
 glass door with his fist and had to be restrained. Although this


-37­

patient has a history of assaultiveness and agitation as a result
 of having to wait for his PRN medications, nursing staff failed
 to include this information in his chart. More disturbing, the
 patient’s reaction to denial of a PRN medication was not
 incorporated into his treatment planning. 

Basic nursing practices, such as monitoring vital signs,
 weight, and temperature, are largely absent from patient care at
 St. Es. The harm that results from these grossly deficient
 practices is not hypothetical. 

In a seven month time span from January 8, 2005 through
 July 26, 2005, 44 St. Es patients needed to be admitted to the
 hospital. Thirty-eight of these patients were admitted through
 the emergency room. In other words, the great majority of
 hospitalized patients developed medical conditions at St. Es so
 severe and life-threatening that they required immediate
 emergency care. Four of the six patients admitted directly to
 the hospital were admitted for avoidable and preventable
 conditions, such as dehydration. A number of patients are sent
 to the hospital from St. Es suffering from dehydration. Nursing
 progress notes rarely, if ever, address basic nurse indicators
 for monitoring dehydration, such as weight; intake and output;
 skin turgor; and temperature. 

Moreover, patients who return to St. Es from a hospital
 admission or emergency room visit, or patients who have high-risk
 medical conditions, receive deficient care and monitoring. For
 example, D.S. had a stroke on January 31, 2005 and was sent to
 the hospital. Upon his return to St. Es on February 2, 2005,
 there was no documented evaluation by the physician or any other
 clinical staff. Nurses failed to notify the physician when the
 patient had difficulty swallowing for several days. Vital signs
 were not monitored until 18 days later, on February 20, when the
 patient was readmitted to the hospital. The patient died a day
 later. It is inexcusable that St. Es did not provide this
 patient with basic medical care and monitoring, including routine
 monitoring of this patient’s vital signs, for more than two
 weeks.

Several patients who returned to St. Es from the hospital,
 either from emergency care or from general hospital care, died
 shortly after their return. Upon returning to St. Es, these
 patients were provided little to no medical attention. For
 example, St. Es sent 79-year-old patient P.T. to the hospital on
 March 29, 2005, where he was diagnosed with congestive heart
 failure. He returned to St. Es approximately four days later.
 Contrary to generally accepted professional standards, St. Es’


-38­

physician did not see the patient until two days after his return
 from the hospital, when the physician had to see the patient to
 remove a fecal impaction. The patient died later that day.
 Although the cause of death is unclear based on the documentation
 that we were provided, the fact that the patient suffered from
 fecal impaction indicates that routine assessments were not
 completed. Assessment of bowel and bladder functioning is not
 only a crucial and standard nursing practice for patients
 recently returning from a hospital admission, but it is
 particularly significant in elderly patients. 

Finally, a significant number of St. Es patients are
 seriously overweight; these problems either developed while at
 St. Es or were a problem prior to admission and exacerbated while
 at St. Es. Weight gain is a common and serious side effect for a
 number of medications typically used in mental health hospitals.
 Therefore, weight gain requires close monitoring and adjustment,
 if necessary. Weight and obesity at St. Es are rarely monitored,
 addressed, or treated. For example, although E.W.’s chart listed
 obesity as a problem area, there was no adequate plan to control
 his food consumption and he gained 54 pounds over a short period
 of time. Contrary to generally accepted professional nursing
 standards of care, nurses failed to enter a nursing diagnosis in
 any chart that we reviewed when there was a notable weight
 alteration. 

2. Medication Administration

Generally accepted professional standards require that staff
 properly complete the Medication Administration Records (“MARs”).
 MARs list the current medications, dosages, routes, and times
 that medications are to be administered. Generally accepted
 professional standards also dictate that staff sign the MARs at
 the time the medication is administered. Completing the MARs
 properly is fundamental to maintaining patient safety and
 reducing the likelihood of medication errors and adverse drug
 effects. If staff members fail to document the medications they
 are administering, it may result in patients not receiving
 medications or receiving medications multiple times. 

We identified many instances in which staff failed to sign
 the MARs for medications that reportedly had been administered.
 For example, U.Y. was given a PRN of haldol and benadryl but they
 were not charted in the MAR. This is a very dangerous practice
 because if this patient had continued to be agitated, another
 nurse could have given him a repeat dosage of the PRN medication
 because the MAR was not accurately completed. 


-39­

It is also necessary to document in the progress notes the
 behavior or circumstances precipitating administration of PRN
 medication, but these are frequently undocumented. For example,
 M.I. received PRN for two psychotropic medications, ativan and
 benadryl, on June 16, 2005, but there was no indication in the
 progress notes or elsewhere why this PRN medication was given.

Moreover, generally accepted professional standards dictate
 that nursing staff who administer medication know: 1) what the
 medication is for; 2) the correct dosage of a prescribed
 medication and to bring the dosage to the attention of the
 physician if the dosage is not within acceptable parameters;
 3) the medication’s expected results and timing; 4) the
 medication’s negative side effects and contraindications; and
 5) the symptoms of the disorder that it is targeting. We
 identified several instances where the nursing staff failed to
 apply and utilize their skills and knowledge to prevent avoidable
 and unnecessary harm to patients. For example, in the first five
 months of 2005, there were three cases of abuse brought against
 physicians involving the dosing of medications that were
 sustained. In each case, nursing staff should have also been,
 but were not, counseled or trained regarding proper dosing.
 Similarly, one RN inaccurately transcribed a physician’s order as
 900 mg of seroquel, when it should have only been 200 mg. The
 patient received several incorrect dosages of seroquel, an
 extremely potent psychotropic drug. The nurse should have known
 the acceptable dosing parameters for this medication.

The inadequate nursing care of patients at St. Es is
 exacerbated by inadequate numbers of nursing staff. Generally
 accepted professional standards require sufficient and minimum
 staffing to provide a level of nursing care that, at a minimum,
 protects patients from harm, ensures adequate and appropriate
 treatment, and prevents unnecessary and prolonged
 institutionalization. St. Es routinely compromises its patients’
 care and treatment by consistently providing insufficient nursing
 staffing levels on all of its wards and units. For example,
 Registered Nurses (“RNs”), who serve as the highest skilled and
 licensed nursing staff at St. Es, are required to supervise
 Licensed Practical Nurses (“LPNs”), Psychiatric Nurses Aides
 (“PNAs”), and the Forensic Psychiatric Technicians (“FPTs”)
 (collectively referred to as “nursing staff”). But, RNs are
 routinely required to cover more than one unit at a time and, on
 many shifts, are altogether absent from the unit staffing levels.
 Consequently, FPTs, who are unlicensed and the least educated
 nursing staff, are routinely left unsupervised and are the only
 nursing staff on the units. Already substandard care becomes
 increasingly dangerous when FPTs are also left to administer


-40­

medications unsupervised. For example, on the June 10, 2005,
 evening shift of JHP Unit 3, we observed an FPT, who had worked
 the day shift and was now working overtime on the evening shift,
 administering medications without any supervision. 

St. Es provides deficient nursing coverage even though it
 utilizes an exorbitant number of overtime nursing hours. This is
 particularly dangerous because RNs who work multiple and
 continuous shifts in a given day and week are more likely to be
 fatigued, less capable of making accurate clinical decisions,
 more likely to make medication errors, more likely to be injured
 and cause injuries, and less inclined to provide patients active
 treatment and interventions. For example, during the week of
 June 5, one RN at St. Es, in addition to working five regular day
 shifts, worked an additional eight shifts of overtime, for a
 total of thirteen shifts in one week.

St. Es’ staffing shortages are egregious and fall
 dangerously below the minimum levels required to provide basic
 levels of nursing services and care. St. Es is understaffed by
 68 RNs.19 As discussed throughout this letter (e.g., assaults,
 elopements, suicide attempts, sexual activity, and poor nursing
 care), St. Es patients are harmed or at substantial risk of harm
 in a number of ways when staff are limited. Some additional
 examples illustrate the harms caused to patients, apparently due
 to staffing shortages:

On April 10, N.U. was “found lying on the floor” of her
 bedroom. Her breathing was shallow and she was unresponsive.
 She was sent to the emergency room. She was later returned to
 St. Es, and the next day, on April 11, she was again “found lying
 on the porch” unresponsive and appeared to be having a seizure.
 She was again sent to the emergency room. She again returned to
 St. Es, and the following day, on April 12, she was again
 “observed” in the day room as unresponsive and she was
 administered oxygen and transported to the emergency room. She
 returned to St. Es and two days later, on April 14, she was
 walking in the hallway at St. Es when she collapsed and became
 unresponsive. She was, again, sent to the emergency room. Over
 the course of five days, this patient was sent to the emergency
 room four times. Patients who return to St. Es after an
 emergency room visit, let alone three emergency room visits, are
 medically compromised and must be actively monitored. N.U. was
 repeatedly “found” or “observed” to be unresponsive even

19
 This number was determined based on St. Es’ minimum
 staffing standards for direct care nurses and factoring in sick
 leave, annual leave, and days off.


-41­

following her return from the emergency room. St. Es repeatedly
 failed to actively monitor a high risk patient. 

In another example, over the course of two weeks, L.P. was
 twice found lying on the floor injured. On one occasion he was
 found on the floor with dried blood above his eyebrow and
 abrasions after apparently suffering from a seizure and falling.
 On the other occasion he was, once again, “observed” lying on the
 floor in front of the nurse’s station with abrasions to his
 forehead. It is inconceivable how a patient can suffer a seizure
 in front of the nurse’s station without being observed or fall on
 the ground and bleed with enough time for the blood to dry before
 he is “observed” on the floor by any staff. 

3. Infection Control

Generally accepted professional standards require adequate
 infection control. St. Es does not have an infection control
 program and it did not have an infection control coordinator from
 October 2004 to July 2005. The lack of an infection control
 program places the patients at risk for harm. 

Areas throughout the facility and patients, themselves, had
 strong smells of urine and excrement. This is a potential
 indication that patients had been sitting in their urine or feces
 for a long period of time, placing them at high risk for skin
 breakdown and infection. Several bathrooms did not have hand
 soap, thereby preventing basic universal precautions such as
 handwashing. Many bathrooms did not have toilet paper; staff
 have to provide toilet paper to patients upon request. There is
 no clinical reason for not having toilet paper in the bathrooms.
 Moreover, during water main breaks, which is reportedly not an
 infrequent occurrence, patients must lift heavy bottles of water
 to flush the toilets. 

D. DISCHARGE PLANNING AND PLACEMENT IN THE MOST INTEGRATED
 SETTING 

Within the limitations of court-imposed confinement, federal
 law requires that hospital administration actively pursue the
 timely discharge of patients to the most integrated, appropriate
 setting that is consistent with patients’ needs. Olmstead v.
 L.C., 527 U.S. 581 (1991).20 From the time of admission, the

20
 In February 1974, a class of individuals civilly
 committed to St. Es filed a lawsuit against the federal
 government (which operated St. Es at the time) and the District
 of Columbia (which was responsible for community mental health


-42­

factors that likely will foster viable discharge for a particular
 patient should be identified expressly, through professional
 assessments, and should drive treatment interventions. Without
 clear and purposeful identification of these factors or issues to
 be addressed, the individual is denied rehabilitation and other
 services and supports to assist the patient in acquiring,
 developing or enhancing the skills necessary to function in a
 community setting. 

Preparation for discharge while in the hospital appears to
 be almost nonexistent. In no instance could we determine that a
 treatment team actually had prepared a patient to transition to,
 or succeed in, a new setting. In fact, the provision of
 transition supports were almost never discussed in the numerous
 patient records that we reviewed. Rehabilitation goals and
 functional recovery were rarely identified. Expressed and
 demonstrated skills in work, school, or independent living were
 rarely analyzed. Finally, the patient played virtually no
 significant role in the discharge process.

Although there are no designated “discharge units” at
 St. Es, Units CT2C and CT2D appear to serve as discharge units
 because they are units with fewer restrictions and structured for
 patients who are higher functioning. However, unlike typical
 discharge units, St. Es patients appear to remain on these units
 for extended stays. Patients on Units CT2C and CT2D have
 treatment plans that include interventions with little, if any,
 likelihood of success, thereby preventing discharge and community
 reintegration. For example, R.F. is reportedly selectively mute
 and refuses medication and blood work, but there are no plans to
 modify these behavioral problems. Similarly, Q.P.’s goals are to
 avoid the influence of hallucinations and delusions. Although

centers in the District). Dixon v. Williams, No. 74-285 (D.D.C.
 filed Feb. 14, 1974). The class action, which was filed under a
 D.C. statute, alleged that the defendants had failed to fulfill
 their duty to return patients at St. Es to the community as soon
 as possible and insofar as possible. The class sought community-
 based mental health treatment alternatives under the least
 restrictive conditions necessary. We are fully aware of the
 existence of the Dixon litigation and the ongoing efforts to
 address community integration of St. Es patients in the context
 of that case. Nevertheless, federal law also requires us to
 address the issue of placement in the most integrated,
 appropriate setting. Moreover, our review discusses the actual
 barriers and deficiencies of St. Es’ procedures, services, and
 treatment for ensuring that individuals can be successfully
 discharged into the community.


-43­

these types of problems might be successfully addressed and
 reduced through a systematic course of cognitive behavioral
 therapy, no such plan was present.

To the extent that St. Es has discharge plans, they are
 overly general, non-specific, unattainable and/or irrelevant to
 discharge. For example, it is common for discharge goals to
 state “increase awareness of illness” and “reduce psychotic
 symptoms.” These goals are not necessarily prerequisites to
 successful functioning and living in the community. More
 relevant treatment targets for community functioning, such as
 improving poor daily living skills, reducing aggressive acting
 out, and eliminating incontinence are routinely ignored in
 discharge planning.

It is also important to note that when patients are
 discharged from St. Es, they are ill-equipped to succeed in
 community placement. St. Es does not appear to provide any
 programs to prepare patients to return to the community, such as
 regular visits to community residences or training in skills such
 as shopping, laundry, and self-medication. In fact, there
 appears to be little attention paid to the successful transition
 of patients to community placements. This is illustrated by a
 particularly disturbing example involving patient B.E. During
 our visit, B.E. was scheduled to be discharged at the end of the
 week. While at St. Es, and, for at least six months prior to our
 visit, he wore a helmet, ostensibly to protect himself from self-
 injurious behavior; he was on one-to-one observation for the
 majority of the time; his bed was wheeled into the day room at
 night to be observed by night staff; and his bed was fitted with
 wrist restraints and a urinal. Thus, it is hard to understand
 how this patient was to be safely discharged to a less intensive
 outpatient environment, when he was hospitalized under such
 extreme and continuous restrictions. 

St. Es’ failure to provide adequate, individualized
 discharge planning significantly deviates from generally accepted
 professional standards and contributes to unnecessarily prolonged
 hospitalization and to inappropriate, unsuccessful placements in
 the community. As a consequence, patients are harmed or exposed
 to the risk of harm by the effects of prolonged
 institutionalization and by being denied a reasonable opportunity
 to live successfully in the most integrated, appropriate setting.


-44­

III. MINIMUM REMEDIAL MEASURES

To remedy the deficiencies discussed and to protect the
 constitutional and federal statutory rights of the patients at
 St. Elizabeths Hospital, the District of Columbia should promptly
 implement the minimum remedial measures set forth below:

A. PROTECTION FROM HARM

1. Risk Management

St. Es should provide its patients with a safe and humane
 environment and adequately protect them from harm. At a minimum,
 St. Es should:

a. Create or revise, as appropriate, and
 implement an incident management system that
 comports with generally accepted professional
 standards. At a minimum, St. Es should:

1. create or revise, as appropriate, and
 implement comprehensive, consistent
 incident management policies and
 procedures that provide clear guidance
 regarding reporting requirements and the
 categorization of incidents, including
 seclusion and restraint, and elopements;

2. require all staff to complete
 successfully competency-based training
 in the revised reporting requirements;

3. create or revise, as appropriate, and
 implement policies and procedures
 related to the tracking and trending of
 incident data, including seclusion and
 restraint data, and ensure that
 appropriate corrective actions are
 identified and implemented in response
 to problematic trends;

4. create or revise, as appropriate, and
 implement thresholds for patient
 injury/event indicators, including
 seclusion and restraint, that will
 initiate review at both the
 unit/treatment team level and at the
 appropriate supervisory level and that


-45­

will be documented in the patient
 medical record with explanations given
 for changing/not changing the patient’s
 current treatment regimen; and 

5. create or revise, as appropriate, and
 implement policies and procedures on the
 close monitoring of patients assessed to
 be at risk, including those at risk of
 suicide, that clearly delineate: who is
 responsible for such assessments,
 monitoring, and follow-up; the requisite
 obligations to consult with other staff
 and/or arrange for a second opinion; and
 how each step in the process should be
 documented in the patient’s medical
 record.

b. Create or revise, as appropriate, and
 implement policies and procedures addressing
 the investigation of serious incidents,
 including elopements, suicides and suicide
 attempts, and abuse and neglect. Such
 policies and procedures shall include
 requirements that such investigations be
 comprehensive, include consideration of
 staff’s adherence to programmatic
 requirements, and be performed by independent
 investigators;

c. Require all staff involved in conducting
 investigations to complete successfully
 competency-based training on technical and
 programmatic investigation methodologies and
 documentation requirements necessary in
 mental health service settings; 

d. Monitor the performance of staff charged with
 investigative responsibilities and provide
 technical assistance and training whenever
 necessary to ensure the thorough, competent,
 and timely completion of investigations of
 serious incidents; 

e. Create or revise, as appropriate, and
 implement a reliable system to identify the
 need for, and monitor the implementation of,


-46­

appropriate corrective and preventative
 actions addressing problems identified as a
 result of investigations; 

f. Conduct a thorough review of all units to
 identify any potential environmental safety
 hazards, develop and implement a plan to
 remedy any identified issues, and immediately
 eliminate dangerous hazards in all seclusion
 rooms;

g. Ensure that all areas of the hospital that
 are occupied or utilized by patients have
 adequate temperature control at all times;

h. Provide sufficient professional and direct
 care staff to adequately supervise patients,
 particularly on the outdoor smoking porches,
 prevent elopements, and otherwise provide
 patients with a safe and humane environment
 and adequately protect them from harm;

i. Ensure that there are spare parts and
 equipment available for conducting routine
 repairs for items such as toilets, sinks,
 showers, kitchen daily use equipment, heating
 and cooling units;

j. Ensure that the elevators are fully repaired.
 If possible, non-ambulatory patients should
 be housed in first floor levels of living
 units. All elevators need to be inspected;

k. Replace or repair the garbage disposals in
 the kitchen. Priority needs to be given to
 repairing the dishwasher and obtaining the
 proper washing and rinsing temperatures; 

l. Review and update the hospital fire safety
 and evacuation plan for all buildings and
 ensure that the plan is approved by the local
 fire authority; and

m. Create or revise, as appropriate, and
 implement proper procedures to remove dirty
 linens and clothing from the living units in
 a timely and safe manner.


-47­

2. Quality Assurance

Develop and implement a comprehensive quality improvement
 system consistent with generally accepted professional standards.
 At a minimum, such a system should:

a. Collect information related to the adequacy
 of the provision of the protections,
 treatments, services, and supports provided
 by St. Es, as well as the outcomes being
 achieved by patients;

b. Analyze the information collected in order to
 identify strengths and weaknesses within the
 current system; and 

c. Identify and monitor implementation of
 corrective and preventative actions to
 address identified issues and ensure
 resolution of underlying problems. 

B. RESTRAINT AND SECLUSION

St. Es should ensure that seclusion and restraints are used
 in accordance with generally accepted professional standards.
 Absent exigent circumstances -- i.e., when a patient poses an
 imminent risk of injury to himself or a third party -- any device
 or procedure that restricts, limits or directs a person’s freedom
 of movement (including, but not limited to, chemical restraints,
 mechanical restraints, physical/manual restraints, or time out
 procedures) should be used only after other less restrictive
 alternatives have been assessed and exhausted. More
 particularly, St. Es should:

1. Ensure that restraints and seclusion:

a. are used in a reliably documented manner;

b. will not be used in the absence of, or as an
 alternative to, active treatment, as
 punishment, or for the convenience of staff;
 and

c. will be terminated once the person is no
 longer an imminent danger to himself or
 others.


-48­

2. Create or revise, as appropriate, and implement
 policies and procedures consistent with generally
 accepted professional standards that cover the
 following areas: 

a. the range of restrictive alternatives
 available to staff and a clear definition of
 each;

b. the training that all staff receive in the
 management of the patient crisis cycle and
 the use of restrictive procedures; and 

c. the use of side rails on patient beds,
 including a plan: 

i. to reduce the use of side rails as
 restraints in a systematic and gradual
 way to ensure the residents’ safety; and

ii. to ensure that residents’ individualized
 treatment plans address the use of side
 rails for those who need them, including
 identification of the medical symptoms
 that warrant the use of side rails and
 plans to address the underlying causes
 of the medical symptoms.

3. Ensure that if a physical, non-mechanical
 restraint is initiated, the patient is assessed
 within an appropriate period of time of his/her
 being physically restrained and an appropriately
 trained staff member makes a determination of the
 need for continued physical, mechanical, and/or
 chemical restraint, and/or seclusion.

4. Ensure that a physician’s order for seclusion or
 restraint include:

a. the specific behaviors requiring the
 procedure;

b. the maximum duration of the order; 

c. behavioral criteria for release, which, if
 met, require the patient’s release even if
 the maximum duration of the initiating order
 has not expired;


-49­

d. ensure that the patient’s attending physician
 be promptly consulted regarding the
 restrictive intervention;

e. ensure that at least every thirty (30)
 minutes, patients in seclusion or restraint
 must be re-informed of the behavioral
 criteria for their release from the
 restrictive intervention;

f. ensure that immediately following a patient
 being placed in seclusion or restraint, the
 patient’s treatment team reviews the
 incident, and the attending physician
 documents the review and the reasons for or
 against any change in the patient’s current
 pharmacological, behavioral, or psychosocial
 treatment;

g. comply with 42 C.F.R. § 483.360(f) as to
 assessments by a physician or licensed
 medical professional of any resident placed
 in seclusion or restraints; and

h. ensure that staff complete successfully
 competency-based training regarding
 implementation of seclusion and restraint
 policies and the use of less restrictive
 interventions.

C. PSYCHIATRIC AND PSYCHOLOGICAL CARE AND TREATMENT 

1. Treatment Planning Process

St. Es should develop and implement an integrated treatment
 planning process consistent with generally accepted professional
 standards. More particularly, St. Es should:

a. Create or revise, as appropriate, and
 implement policies and procedures regarding
 the development of treatment plans consistent
 with generally accepted professional
 standards;

b. Create or revise, as appropriate, each
 patient’s treatment plan to ensure that it is
 current, individualized, strengths-based,
 outcome-driven, emanates from an integration


-50­

of the individual disciplines’ assessments of
 patients, that goals and interventions are
 consistent with clinical assessments and is 
 otherwise consistent with a person-centered
 and recovery-based model that utilizes
 positive behavioral supports and the
 strengths of individuals;

c. Ensure that treating psychiatrists verify, in
 a documented manner, that psychiatric and
 behavioral treatments are properly
 integrated;

d. Require all clinical staff to complete
 successfully competency-based training on the
 development and implementation of
 interdisciplinary treatment plans, including
 skills needed in the development of clinical
 formulations, needs, goals and interventions
 as well as discharge criteria;

e. Ensure that the medical director timely
 reviews high-risk situations such as
 individuals requiring repeated use of
 seclusion and restraints;

f. Create or revise, as appropriate, and
 implement programs for individuals suffering
 from both substance abuse and mental illness
 problems; a cognitive remediation program for
 individuals with cognitive impairments; and
 programs for individuals with forensic
 status; and

g. Create or revise, as appropriate, and
 implement mechanisms to ensure that all
 individuals adjudicated Not Guilty by Reason
 of Insanity (“NGRI”) receive ongoing
 assessments by the interdisciplinary
 treatment team that are timely and adequate
 to enable the courts to review effectively
 and in a timely manner appropriate
 modifications in the individual’s legal
 status and/or need for less restrictive care.


-51­

2. Assessments and Services

a. Psychiatric Assessments and Diagnoses

St. Es should ensure that its patients receive accurate,
 complete, and timely psychiatric assessments and diagnoses,
 consistent with generally accepted professional standards, and
 that these assessments and diagnoses drive treatment
 interventions. More particularly, St. Es should:

i. create or revise, as appropriate, and
 implement comprehensive policies and
 procedures regarding the timeliness and
 content of initial psychiatric
 assessments and ongoing reassessments.
 Ensure that initial assessments include
 a plan of care that outlines specific
 strategies, with rationales, including
 adjustments of medication regimens and
 initiation of specific treatment
 interventions;

ii. ensure that psychiatric reassessments
 are completed within time-frames that
 reflect the individual’s needs,
 including prompt evaluations of all
 individuals requiring restrictive
 interventions;

iii. develop diagnostic practices, guided by
 current, generally accepted professional
 criteria, for reliably reaching the most
 accurate psychiatric diagnoses;

iv. develop a clinical formulation for each
 patient that integrates relevant
 elements of the patient’s history,
 mental status examination, and response
 to current and past medications and
 other interventions, and that is used to
 prepare the patient’s treatment plan;

v. ensure that the information gathered in
 the assessments and reassessments is
 used to justify and update diagnoses,
 establish and perform further


-52­


assessments for a differential
 diagnosis, and finalize all diagnoses
 listed as “NOS” (not otherwise
 specified)” or “R/O” (rule-out);


vi. create or revise, as appropriate,
 psychiatric assessments of all patients,
 providing clinically justifiable current
 diagnoses for each patient, and removing
 all diagnoses that cannot be clinically
 justified. Modify treatment and
 medication regimens, as appropriate,
 considering factors such as the
 patient’s response to treatment,
 significant developments in the
 patient’s condition, and changing
 patient needs;


vii. ensure that all physician trainees
 completing psychiatric assessments are
 supervised by the attending
 psychiatrist. In all cases, the
 psychiatrist must review the content of
 these assessments and write a note to
 accompany these assessments. The note 
 must detail the review and include any
 additional information in areas that are
 not covered in the assessments;


viii.

create or revise, as appropriate, and
 implement an admission risk assessment
 procedure, with special precautions
 noted where relevant, that includes
 information on the categories of risk
 (e.g., suicide, self-injurious behavior,
 violence, elopement, sexually predatory
 behavior, wandering, falls, etc.);
 whether the risk is recent and its
 degree and relevance to dangerousness;
 the reason hospital level of care is
 needed; and any mitigating factors and
 their relation to current risk;


ix. create or revise, as appropriate, and
 implement a monitoring instrument to
 ensure a systematic review of the
 quality and timeliness of all
 assessments according to established


-53­

indicators, including an evaluation of
 initial evaluations, progress notes and
 transfer and discharge summaries, and
 require the physician peer review system
 to address the process and content of
 assessments and reassessments, identify
 individual and group trends and provide
 corrective follow-up action; and

x. create or revise, as appropriate, and
 implement an inter-unit transfer
 procedure that specifies the format and
 content requirements of transfer
 assessments, including the mission of
 all units in the facility.

b. Psychological Assessments and Diagnoses

St. Es should ensure that its patients receive accurate,
 complete, and timely psychological assessments, consistent with
 generally accepted professional standards, and that these
 assessments support adequate behavior and treatment programs. To
 this end, St. Es should ensure that:

i. Prior to developing the treatment plan,
 psychologists provide a psychological
 assessment of the patient that includes
 appropriate patient information,
 including but not limited to:

a. precipitating factors and reason
 for admission;

b. background information (including
 developmental, psychosocial,
 educational, substance abuse and
 mental health history);

c. history of psychological testing,
 including cognitive and personality
 variables (including dates,
 locations, examiners,
 scores/results, and qualifying
 statements as available);


-54­

d. history of any brain injury
 (including nature of injuries,
 dates, course of treatment and
 recovery, and impact on current
 functioning);

e. legal and forensic history;

f. mental status examination and
 observation of behavior (including
 results of any formal testing
 conducted for purposes of current
 evaluation);

g. assessment of risk for harm
 factors;

h. strengths, interests, motivation
 and ability to change;

i. cognitive and personality factors
 affecting treatment need and
 treatment response; and 

j. a summary that contains conclusions
 which specifically address the
 purpose of the assessment with the
 empirical basis for the
 conclusions; any remaining
 unanswered questions; and
 recommendations for psychological
 intervention.

ii. where applicable, if behavioral
 intervention is indicated, further
 assessments be conducted in a manner
 consistent with generally accepted
 professional standards.

iii. provide adequate numbers of
 psychologists for every unit,
 psychologists with expertise in behavior
 management, and neuropsychologists to
 provide adequate assessments and
 behavioral treatment programs. 


-55­

c. Psychiatric Services

St. Es should provide adequate psychiatric supports and
 services for the treatment of its patients, including medication
 management and monitoring of medication side-effects in
 accordance with generally accepted professional standards. More
 particularly, St. Es should:

i. create or revise, as appropriate, and
 implement policies and procedures
 requiring clinicians to document their
 analyses of the benefits and risks of
 chosen treatment interventions;

ii. ensure that the treatment plans at St.
 Es include a psychopharmacological plan
 of care that includes information on
 purpose of treatment, type of
 medication, rationale for its use,
 target behaviors, and possible side
 effects. Reassess the diagnosis in
 those cases that fail to respond to
 repeat drug trials; 

iii. ensure that individuals in need are
 provided with behavioral interventions
 and plans with proper integration of
 psychiatric and behavioral modalities.
 In this regard, St. Es should:

a. ensure that psychiatrists review
 all proposed behavioral plans to
 determine that they are compatible
 with psychiatric formulations of
 the case;

b. ensure regular exchanges of data
 between the psychiatrist and the
 psychologist and use such exchanges
 to distinguish psychiatric symptoms
 that require drug treatments from
 behaviors that require behavioral
 therapies; and

c. integrate psychiatric and
 behavioral treatments in those
 cases where behaviors and
 psychiatric symptoms overlap.


-56­

iv. ensure that all psychotropic medications
 are:

a. prescribed in therapeutic amounts;

b. tailored to each patient’s
 individual symptoms;

c. monitored for efficacy against
 clearly-identified target variables
 and time frames;

d. modified based on clinical
 rationales; and

e. properly documented.

v. ensure that the psychiatric progress
 note documentation includes:

a. the rationale for the choice and
 continued use of drug treatments;

b. individuals’ histories and previous
 responses to treatments;

c. careful review and critical
 assessment of the use of PRN
 medications and the use of this
 information in timely and
 appropriate adjustment of regular
 drug treatment;

d. justification of polypharmacy in
 accordance with generally accepted
 professional standards; and

e. attention to the special risks
 associated with the use of
 benzodiazepines, anticholinergic
 agents and conventional and
 atypical antipsychotic medications
 with particular attention given to
 the long-term use of these
 medications in individuals at risk
 for substance abuse, cognitive
 impairments, or movement and
 metabolic disorders.


-57­

vi. institute an appropriate system for the
 monitoring of individuals at risk for TD
 that includes a standardized rating
 instrument used by properly trained
 staff in a timely manner. Ensure that 
 the psychiatrists integrate the results
 of these ratings in their assessments of
 the risks and benefits of drug
 treatments.

vii. institute systematic monitoring
 mechanisms regarding medication use
 throughout the facility. In this
 regard, St. Es should:

a. create or revise, as appropriate,
 and implement and continually
 update a complete set of medication
 guidelines that address the
 indications, contraindications,
 screening procedures, dose
 requirements and expected
 individual outcomes for all
 psychiatric medications in the
 formulary that reflects generally
 accepted professional standards; 

b. based upon adequate medication
 guidelines, create or revise, as
 appropriate, and implement a Drug
 Utilization Evaluation procedure
 based on adequate data analysis
 that includes both random and
 systematic reviews, prioritizes
 high risk medications, and produces
 individual and group practitioner
 trends;

c. create or revise, as appropriate,
 and implement a procedure for the
 identification, reporting and
 monitoring of adverse drug
 reactions (“ADRs”) that includes
 the definition of an ADR, likely
 causes, a probability scale, a
 severity scale, interventions and 


viii.

-58­

outcomes and that establishes
 thresholds to identify serious
 reactions;

d. create or revise, as appropriate,
 and implement an effective
 Medication Variance Reporting
 system that captures both potential
 and actual variances in the
 prescription, transcription,
 procurement/ordering,
 dispensing/storage, administration
 and documentation of medications,
 and identifies critical breakdown
 points and contributing factors; 

e. create or revise, as appropriate,
 and implement a procedure governing
 the use of PRN medications that
 includes requirements for specific
 identification of the behaviors
 that result in PRN administration
 of medications, a time limit on PRN
 uses, documented rationale for the
 use of more than one medication on
 a PRN basis, and physician
 documentation to ensure timely
 critical review of the individual’s
 response to PRN treatments and
 reevaluation of regular treatments
 as a result of PRN uses;

f. ensure that PRN psychotropic
 medications are used only as a
 short-term measure to relieve a
 patient in acute distress, not as
 means to escape mild, possibly
 healthy, discomfort or as a
 repeatedly deployed substitute for
 treatment; and

g. reduce its use of seclusion,
 restraints, and psychotropic PRN
 medications.

establish monitors to ensure the
 appropriate use of high-risk
 medications, including:


-59­

a. long-term benzodiazepine and
 anticholinergic medications
 particularly for individuals with
 substance use problems, cognitive
 impairments and current or past
 history of TD, as indicated; and

b. the use of conventional
 antipsychotics, particularly for
 individuals with current or past
 history of TD. 

ix. establish a system for the pharmacist to
 communicate drug alerts to the medical
 staff in a timely manner; and

x. provide adequate levels of psychiatric
 staffing to ensure coverage by a full-
 time psychiatrist for no more than 12
 individuals on the acute care units and
 no more than 24 individuals on the long-
 term units.

d. Psychological Services

St. Es should provide psychological supports and services
 adequate to treat the functional and behavioral needs of its
 patients according to generally accepted professional standards,
 including adequate behavioral plans and individual and group
 therapy appropriate to the demonstrated needs of the individual.
 More particularly, St. Es should:

i. ensure that psychologists provide unit-
 based services that include initial
 assessment, treatment rounds, treatment
 planning, behavioral plans, and
 individual therapy for patients on their
 units/treatment teams;

ii. ensure that psychologists adequately
 screen patients for appropriateness of
 individualized behavior plans,
 particularly patients who are subjected
 to frequent restrictive measures,
 patients with a history of aggression
 and self-harm, treatment refractory
 patients, and patients on multiple
 medications;


-60­

iii. ensure that behavior plans contain a
 description of the maladaptive behavior,
 a functional analysis of the maladaptive
 behavior and competitive adaptive
 behavior that is to replace the
 maladaptive behavior, a documentation of
 how reinforcers for the patient were
 chosen and what input the patient had in
 their development, and the system for
 earning reinforcement;

iv. ensure that behavioral interventions are
 the least restrictive alternative and
 are based on appropriate, positive
 behavioral supports, not the use of
 aversive contingencies;

v. ensure that psychologists treating
 patients have a demonstrated competence,
 consistent with generally accepted
 professional standards, in the use of
 functional assessments and positive
 behavioral supports;

vi. ensure that psychosocial,
 rehabilitative, and behavioral
 interventions are monitored
 appropriately against rational,
 operationally defined, target variables
 and revised as appropriate in light of
 significant developments and the
 patient’s progress, or the lack thereof;
 and

vii. ensure sufficient psychological staff to
 provide psychological services in
 accordance with accepted professional
 standards.

D. NURSING AND UNIT-BASED SERVICES

St. Es should provide nursing and unit-based services to its
 patients consistent with generally accepted professional
 standards. Such services should result in St. Es patients
 receiving individualized services, supports, and therapeutic
 interventions, consistent with their treatment plans. More
 particularly, St. Es should:


-61­

1. Ensure that, before they work directly with
 patients, all nursing and unit-based staff have
 completed successfully competency-based training
 regarding mental health diagnoses, related
 symptoms, psychotropic medications, identification
 of side effects of psychotropic medications,
 monitoring of symptoms and target variables, and
 documenting and reporting of the patient’s status.

2. Ensure that nursing staff monitor, document, and
 report accurately and routinely patients’
 symptoms, actively participate in the treatment
 team process and provide feedback on patients’
 responses, or lack thereof, to medication and
 behavioral interventions.

3. Ensure that nursing staff document properly and
 monitor accurately the administration of
 medications.

4. Ensure that, prior to assuming their duties and on
 a regular basis thereafter, all staff responsible
 for the administration of medication have
 completed successfully competency-based training
 on the completion of the Medication Administration
 Records.

5. Ensure that all failures to properly sign the
 Medication Administration Record are treated as 
 medication errors, and that appropriate follow-up
 occurs to prevent recurrence of such errors.

6. Ensure that staff responsible for medication
 administration regularly ask patients about side
 effects they may be experiencing.

7. Ensure that staff monitor, document, and report
 the status of symptoms and target variables in a
 manner enabling treatment teams to assess the
 patient’s status and to modify, as appropriate,
 the treatment plan.


-62­

8. Ensure that each patient’s treatment plan
 identifies:

a. the diagnoses, treatments, and interventions
 that nursing and other staff are to
 implement;

b. the related symptoms and target variables to
 be monitored by nursing and other unit staff;
 and

c. the frequency by which staff need to monitor
 such symptoms. 

9. Establish an effective infection control 
 program to prevent the spread of infections or
 communicable diseases. More specifically, St. Es
 should: 

a. actively collect data with regard to
 infections and communicable diseases; 

b. assess these data for trends; 

c. initiate inquiries regarding problematic
 trends;

d. identify necessary corrective action;

e. monitor to ensure that appropriate remedies
 are achieved; 

f. integrate this information into St. Es’
 quality assurance review; and

g. ensure that nursing staff implement the
 infection control program. 

10. Ensure sufficient nursing staff to provide nursing
 care and services in accordance with generally
 accepted professional standards. 


-63­

E. PHARMACY SERVICES

St. Es patients should receive pharmacy services consistent
 with generally accepted professional standards. More
 particularly, St. Es should:

1. Create or revise, as appropriate, and implement
 policies and procedures that:

a. require pharmacists to complete regular,
 appropriate reviews of patients’ entire
 medication regimens, track the use of
 psychotropic PRN medications, and, as
 warranted, make recommendations to the
 treatment team about possible drug-to-drug
 interactions, side effects, medication
 changes, and needs for testing; and 

b. require that physicians consider pharmacists’
 recommendations, clearly document their
 responses and actions taken, and for any
 recommendations not followed, provide an
 adequate clinical justification.

F. DOCUMENTATION OF PATIENT PROGRESS

St. Es should ensure that patient records accurately reflect
 patient progress, consistent with generally accepted
 professional standards. More particularly, St. Es should:

1. Create or revise, as appropriate, and implement
 policies and procedures setting forth clear
 expectations regarding the content and timeliness
 of progress notes, transfer notes, and discharge
 notes; and

2. Ensure that such records include meaningful,
 accurate assessments of a patient’s progress
 relating to the treatment plan and treatment
 goals. 

G. DISCHARGE PLANNING AND PLACEMENT IN THE MOST 
 INTEGRATED SETTING

Within the limitations of court-imposed confinement and
 public safety, the District should pursue actively the
 appropriate discharge of patients and ensure that they are
 provided services in the most integrated, appropriate setting


-64­

that is consistent with patients’ needs. More particularly,
 St. Es should: 

1. Identify at admission and address in treatment
 planning the criteria that likely will foster
 viable discharge for a particular patient,
 including but not limited to: 

a. the individual patient’s symptoms of mental
 illness or psychiatric distress;

b. any other barriers preventing that specific
 patient in transitioning to a more integrated
 environment, especially difficulties raised
 in previously unsuccessful placements; and

c. the patient’s strengths, preferences, and
 personal goals.

2. Include in treatment interventions the development
 of skills necessary to live in the setting in
 which the patient will be placed, and otherwise
 prepare the patient for his or her new living
 environment;

3. Provide the patient adequate assistance in
 transitioning to the new setting;

4. Ensure that professional judgments about the most
 integrated setting appropriate to meet each
 patient’s needs are implemented and that
 appropriate aftercare services are provided that
 meet the needs of the patient in the community;

5. Ensure that the patient is an active participant
 in the placement process; and

6. Create or revise, as appropriate, and implement a
 quality assurance or utilization review process to
 oversee the discharge process and aftercare
 services, including:

a. developing a system of follow-up with
 community placements to determine if
 discharged patients are receiving the care
 that was prescribed for them at discharge;
 and


-65­

b. hiring enough staff to implement these
 minimum remedial measures with respect to
 discharge planning.

* * * * *

The collaborative approach that the parties have taken thus
 far has been productive. We hope to continue working with the
 District in this fashion to resolve our significant concerns
 regarding the care and services provided at St. Es.

Provided that our cooperative relationship continues, we
 will forward our expert consultants’ reports under separate
 cover. Although their reports are their work – and do not
 necessarily represent the official conclusions of the Department
 of Justice - their observations, analyses, and recommendations
 provide further elaboration of the issues discussed in this
 letter and offer practical technical assistance in addressing
 them. We hope that you will give this information careful
 consideration and that it will assist in facilitating a dialogue
 swiftly addressing areas requiring attention.

We are obliged by statute to advise you that, in the
 unexpected event that we are unable to reach a resolution
 regarding our concerns, the Attorney General is empowered to
 initiate a lawsuit pursuant to CRIPA to correct deficiencies of
 the kind identified in this letter 49 days after appropriate
 officials have been notified of them. 42 U.S.C. § 1997b(a)(1).
 We would prefer, however, to resolve this matter by working
 cooperatively with you. We have every confidence that we will be
 able to do so in this case. The lawyers assigned to this matter
 will be contacting your attorneys to discuss this matter in
 further detail. If you have any questions regarding this letter,
 please call Shanetta Y. Cutlar, Chief of the Civil Rights
 Division’s Special Litigation Section, at (202) 514-0195. 

Sincerely,

/s/ Wan J. Kim
Wan J. Kim
 Assistant Attorney General


-66­

cc: Mr. Kenneth L. Wainstein
 United States Attorney
 District of Columbia

The Honorable Robert J. Spagnoletti
 Attorney General
 District of Columbia

Ms. Ella Thomas
 Interim Director
 Department of Mental Health (DMH)

Ms. Joy Holland
 Chief Executive Officer
 St. Elizabeths Hospital


 
 Case: 1:07-cv-889 As of: 11/09/2017 11:11 AM EST 1 of 3
CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:07−cv−00889−TFH

UNITED STATES OF AMERICA v. DISTRICT OF COLUMBIA et al Assigned to: Judge Thomas F. Hogan Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/11/2007 Date Terminated: 09/04/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by Je Yon Jung U.S. DEPARTMENT OF JUSTICE Special Litigation Section 601 D Street, NW Room 5916 Washington, DC 20004 (202) 514−4713 Fax: 202−514−1116 Email: jeyon.jung@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Lindsay Leung U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305−3773 Email: michelle.leung@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wan J. Kim KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, NW Suite 400 Washington, DC 20036 (202) 374−0301 Email: wkim@kellogghansen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G. Maddox U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Special Litigation Section 601 D Street, NW PHB, #5018 Washington, DC 20004 (202) 514−6251 Email: william.maddox@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DISTRICT OF COLUMBIA

represented by Ellen A. Efros COUNCIL OF THE DISTRICT OF COLUMBIA

Case: 1:07-cv-889 As of: 11/09/2017 11:11 AM EST 2 of 3

Office of the General Counsel 1350 Pennsylvania Avenue, NW Suite 4 Washington, DC 20004 (202) 724−7820 Fax: (202) 724−8129 Email: eefros@dccouncil.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ADRIAN M. FENTY Honorable, Mayor of the District of Columbia, in his official capacity only

represented by Ellen A. Efros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
STEPHEN T. BARON Director, Department of Mental Health, in his official capacity only

represented by Ellen A. Efros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
PATRICK J. CANAVAN Chief Executive Officer, St. Elizabeths Hospital, in his official capacity only

represented by Ellen A. Efros (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/11/2007
05/11/2007 05/11/2007 05/11/2007 05/14/2007 06/11/2007
06/12/2007 06/25/2007
07/03/2007
10/13/2011

# Docket Text
1 COMPLAINT against DISTRICT OF COLUMBIA, ADRIAN M. FENTY, STEPHEN T. BARON, PATRICK J. CANAVAN filed by UNITED STATES OF AMERICA. (Attachments: # 1 Civil Cover Sheet)(lc, ) (Entered: 05/14/2007)
2 NOTICE OF RELATED CASE by UNITED STATES OF AMERICA. Case related to Case No. 05−585. (lc, ) (Entered: 05/14/2007)
3 Joint MOTION for Entry of Settlement Agreement by UNITED STATES OF AMERICA (Attachments: # 1 Settlement Agreement)(lc, ) (Entered: 05/14/2007)
SUMMONS Not Issued as to DISTRICT OF COLUMBIA, ADRIAN M. FENTY, STEPHEN T. BARON, PATRICK J. CANAVAN (lc, ) (Entered: 05/14/2007)
Summons Issued (4) as to DISTRICT OF COLUMBIA, ADRIAN M. FENTY, STEPHEN T. BARON, PATRICK J. CANAVAN. (ls, ) (Entered: 05/14/2007)
MINUTE ORDER scheduling a hearing to take place on Monday, June 25, 2007, at 11:00 a.m. in Courtroom 25A before Chief Judge Thomas F. Hogan regarding 3 Joint Motion for Entry of Settlement Agreement filed by United States of America. Signed by Chief Judge Thomas F. Hogan on June 11, 2007. (lctfh2) (Entered: 06/11/2007)
4 NOTICE of Appearance by Ellen A. Efros on behalf of all defendants (Efros, Ellen) (Entered: 06/12/2007)
5 ORDER granting [#3] Joint Motion for Entry of Settlement Agreement, Signed by Chief Judge Thomas F. Hogan on 6/25/07. (Attachments: # 1 Settlement Agreement) (hs,) (Entered: 06/25/2007)
Minute Entry. Proceedings held before Chief Judge Thomas F. Hogan : Status Conference held on 6/25/2007. (Court Reporter Cathryn Jones.) (hs,) (Entered: 07/03/2007)
6 NOTICE of Appearance by Michelle Lindsay Leung on behalf of UNITED STATES OF AMERICA (Leung, Michelle) (Entered: 10/13/2011)

Case: 1:07-cv-889 As of: 11/09/2017 11:11 AM EST 3 of 3

10/13/2011
10/26/2011 10/26/2011 08/28/2014 09/19/2014

7 Joint MOTION to Modify Settlement Agreement by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Leung, Michelle) (Entered: 10/13/2011)
8 ORDER granting 7 Motion to Modify Settlement Agreement. Signed by Judge Thomas F. Hogan on 10/20/11. (cp) (Entered: 10/26/2011)
9 MODIFIED SETTLEMENT AGREEMENT. (cp) (Entered: 10/26/2011)
10 Joint MOTION for Order of Final Dismissal by UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Maddox, William) (Entered: 08/28/2014)
11 ORDER OF FINAL DISMISSAL: Having considered the Parties Joint Motion For Order of Final Dismissal, it is hereby ordered that the Modified Settlement Agreement and its associated Order are terminated and this case is dismissed with prejudice. Further, the Court takes judicial notice of the Parties NOTICEOF CONTINUING MONITORING BETWEEN SAINT ELIZABETHS HOSPITAL ANDUNIVERSITY LEGAL SERVICES. Signed by Judge Thomas F. Hogan on 9/16/2014. (tcr) (Entered: 09/19/2014)